{"id":"alj-H208725-2023-06-14","awcc_number":"H208725","decision_date":"2023-06-14","opinion_type":"alj","claimant_name":"Lauren Farley","employer_name":"Ozark Regional Vein & Artery Center","title":"FARLEY VS. OZARK REGIONAL VEIN & ARTERY CENTER AWCC# H208725 JUNE 14, 2023","outcome":"granted","outcome_keywords":["granted:6"],"injury_keywords":["back","cervical","lumbar","hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/FARLEY_LAUREN_H208725_20230614.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"FARLEY_LAUREN_H208725_20230614.pdf","text_length":21165,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H208725 \n \nLAUREN FARLEY, Employee                                                                          CLAIMANT \n \nOZARK REGIONAL VEIN & ARTERY CENTER, Employer                     RESPONDENT                        \n \nCONTINENTAL INSURANCE COMPANY, Carrier                                   RESPONDENT                        \n \n \n OPINION FILED JUNE 14, 2023 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by EVELYN E. BROOKS, Attorney, Fayetteville, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On May 24, 2023, the above captioned claim came on for hearing at Springdale, \nArkansas.  A pre-hearing conference was conducted on March 1, 2023 and a pre-hearing \norder was filed on that same date.  A copy of the pre-hearing order has been marked as \nCommission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.      The  employee/employer/carrier  relationship  existed  among  the  parties  on \nNovember 21, 2022. \n 3.   The claimant was earning an average weekly wage of  $720.00 which would \nentitle her to compensation at the weekly rates of $480.00 for total disability benefits and \n\nFarley – H208725 \n2 \n \n$360.00 for permanent partial disability benefits. \n 4.   The respondents have controverted this claim in its entirety. \n At the time of the hearing the parties agreed to stipulate that claimant earned an \naverage weekly wage of $824.36 which would entitle her to compensation at the rates of \n$550.00 for total disability benefits and $413.00 for permanent partial disability benefits. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.    Compensability of injury to claimant’s back on November 21, 2022. \n2.    Related medical treatment; including, treatment recommended by Dr. Deimel. \n3.    Temporary total disability benefits from November 22, 2022 through a date \nyet to be determined. \n4.    Attorney fee. \nClaimant clarified at the time of the hearing that she is requesting temporary total \nDisability benefits from November 22, 2022 through January 24, 2023.   \n The  claimant  contends  she  is  entitled  to  medical  treatment  for  her  back  as \nrecommended by Dr. Deimel, and to temporary total disability benefits from November \n22,  2022  through  January  24,  2023,  and  an  attorney  fee.    Claimant  reserves  all  other \nissues. \n The  respondents  contend  the  claimant  did  not  sustain  a  compensable  injury  on \nNovember  21,  2022.    The  claimant  suffers  from  a  pre-existing  degenerative  back \ncondition for which she takes pain medication and has had a LESI as recently as October \n3, 2022, June 10, 2022, and March 11, 2022.  The claimant was not on the clock when \nher  alleged  injury  occurred.    The  claimant  was  not  being  paid  for  her  time and  was \nvolunteering to help respondent employer move into a new facility.  The claimant cannot \n\nFarley – H208725 \n3 \n \nprove by a preponderance of the evidence that she sustained a compensable injury that \narose out of and in the course of her employment that is supported by objective medical \nfindings of a new injury. \n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe her demeanor, the following findings of fact \nand conclusions of law are made in accordance with A.C.A. §11-9-704: \n \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.   The stipulations agreed to by the parties at a pre-hearing conference conducted \non March 1, 2023 and contained in a pre-hearing order filed that same date are hereby \naccepted as fact. \n 2.    Claimant has met her burden of proving by a preponderance of the evidence \nthat she suffered a compensable injury to her low back while working for respondent on \nNovember 21, 2022. \n 3.    Respondent is liable for payment of all reasonable and necessary medical \ntreatment provided in connection with claimant’s compensable injury.   This includes \nmedical recommended by Dr. Deimel. \n 4.   Claimant has met her burden of proving by a preponderance of the evidence \nthat she is entitled to temporary total disability benefits beginning November 30, 2022 \nand continuing through January 24, 2023. \n 5.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits. \n\nFarley – H208725 \n \n4 \n \n \n FACTUAL BACKGROUND \n Claimant  is  a  34-year-old  woman  who  began  working  for  respondent  in  March \n2020  as  an  esthetician  with  her  job  duties  primarily  consisting  of  performing  facials.   \nHowever, she also performed some other skin care treatments as well as using lasers.  \nShe also testified that she occasionally worked at the front desk as a receptionist and was \nresponsible for inventory and ordering supplies. \n The  claimant  has  a  history  of  spinal  complaints  which  have  included  cervical \nfusions  in  March  and  October  2016.    In  addition,  claimant  has  had  some  complaints \ninvolving  her  lumbar  spine.    Since  2020  the  claimant  has  primarily  received  medical \ntreatment from Dr. George Deimel, an orthopedic surgeon at Ozarks Orthopaedics.  In \naddition,  claimant  has  also  received  treatment  from  Thurman  Smith,  PA-C  at  Ozarks \nOrthopaedics.    On  July  8,  2020  claimant  was  seen  by  Dr.  Deimel  and  he  noted that \nclaimant was complaining of lumbar pain for which he suspected that she suffered from \nlumbosacral  radicular  pain  syndrome.    Dr.  Deimel  ordered  an  MRI  scan  which  was \nperformed on July 21 and was read as showing mild ligamentous and facet disease at \nL4-5 and L5-S1.   \n Claimant  returned  to  see  Smith  on  July  23,  2020,  at  which  time  he  discussed \nclaimant undergoing some injections for diagnostic/therapeutic purposes.  Smith’s report \nindicates that claimant wanted to think about that treatment and noted that claimant would \ncall if she wished to pursue injections at the L4-5 and L5-S1 areas.   \n Claimant  did  not  choose  to  undergo  those  injections  until  she  was  seen  by Dr. \nDeimel on February 8, 2022.  In his report of that date, Dr. Deimel notes that claimant has \n\nFarley – H208725 \n \n5 \n \nnoticed that she had worsening pain with increased activity.  This was primarily due to \nher work activities which required prolonged standing, sitting, twisting, and bending.  Dr. \nDeimel  indicated  that  it  would  be  reasonable  to  consider  injections  and  he  performed \ninjections at the L4-5 and L5-S1 levels on March 11, 2022.   \n Smith’s  report  of  April  5,  2022  indicates  that  following  the  injection  claimant \nreceived 95% improvement in her low back pain.  Claimant underwent repeat injections \nby Dr. Deimel on June 10, 2022 and again on October 3, 2022.  While the second injection \nwas  not  as  effective  as  the  first,  Smith  noted  in  his  report  of  October  18  that  claimant \nreceived greater than 80% improvement in her lumbar radicular complaints. \n Claimant testified that on November 21, 2022, she was sitting at the front desk and \nwas placing various supplies, manuals, and brochures into a box and as she “was bent \nover,  I  felt  a  loud  pop  in  the  back  and  immediately  two  shooting  pains  down  my  leg.”  \nClaimant  testified  that  she  reported  the  injury  to  her  HR  clinic  manager  and sought \nmedical treatment the next day from Urgent Care at Ozark Orthopaedics. \n Claimant was evaluated by Tanner McGinty at Urgent Care on November 22, 2022 \nand his report reflects a history of claimant feeling a sudden pop in her sacral region after \nbending over at work the day before.  McGinty prescribed medication and ordered an MRI \nscan of the claimant’s lumbar spine. \n Claimant  underwent  a  lumbar  MRI  on  November  28,  2022,  which  was  read  as \nshowing mild multilevel spondylosis as well as a disc extrusion at the L5-S1 level. \n Thereafter, claimant was evaluated by Thurman Smith on December 6, 2022, and \nhe recommended additional injections based on claimant’s positive response to injections \nin the past.  The medical records indicate that claimant underwent lumbar epidural steroid \n\nFarley – H208725 \n \n6 \n \ninjections by Dr. Deimel on January 9, 2023.  Since the time of that injection claimant’s \ntreatment has primarily focused on a right hip labral tear which resulted in surgery in April \n2023.  Claimant is not contending that her right hip injury is a work related injury. \n Claimant has filed this claim contending that she suffered a compensable injury to \nher low back on November 21, 2022.  She seeks payment of related medical treatment \nas well as temporary total disability benefits and a controverted attorney fee. \n \nADJUDICATION \n Initially,  I  note  that  respondent  contends  that  claimant  was  not  performing \nemployment services at  the time of her injury. An employee is performing employment \nservices  when  she  is  doing  something  that  is  generally  required  by  her  employer.  \nTexarkana School District v. Conner, 373 Ark. 372, 284 S.W. 3d 57 (2008).  The test is \nwhether  the  injury  occurred  within  the  time  and  space  boundaries  of  the  employment, \nwhen the employee was carrying out the employer’s interest, either directly or indirectly.  \nJaven v. Economy Inn & Suites, 370 Ark. 414, 260 S.W. 3d 281 (2007). \n I   find   based   upon   the   evidence   presented   that   claimant   was   performing \nemployment services at the time of her injury.  Initially, it should be noted that November \n21,  2022  was  a  Monday.   Apparently,  on  Saturday,  November  19,  the  claimant  was \npresent at the respondent’s place of business and engaged in activities involving a move.  \nHowever, claimant testified that she was not injured on Saturday, November 19, and there \nis no other evidence indicating that claimant’s injury actually occurred on November 19 \nas opposed to November 21.   \n With respect to November 21, I note that respondent agrees that claimant worked \n\nFarley – H208725 \n \n7 \n \n3.80 hours that day.  Claimant testified that she was working at the front desk packing \nvarious items in a box when she felt a pop and pain in her low back.  The items claimant \nwas packing were related to her employment with the respondent.  \n Accordingly, I find that claimant was performing employment services at the time \nof her accident on November 21, 2022.  She was at work and was packing items in a box \nfor her employer which advanced the employer’s interest, either directly or indirectly. \n I also find that claimant has met her burden of proving by a preponderance of the \nevidence that she suffered a compensable injury to her low back on November 21, 2022.  \nClearly, as previously noted, claimant did have some prior lumbar complaints for which \nshe received treatment, including lumbar epidural steroid injections. \n Under Arkansas workers’ compensation law, an employer takes the employee as \nit  finds  him,  and  employment  services  that  aggravate  pre-existing  conditions  are \ncompensable.  Heritage Baptist Temple v. Robison, 82 Ark. App. 460, 120 S.W. 3d 150 \n(2003).  An aggravation is a new injury resulting from an independent incident, so it must \nmeet  the  definition  of  a  compensable  injury  in  order  to  establish  compensability  of  the \naggravation.  Green County Judge v. Penny, 2019 Ark. App. 552 @ 11, 589 S.W. 3d 478, \n486 (citing Liaromatis v. Baxter County Regional Hospital, 95 Ark. App. 296, 236 S.W. 3d \n524 (2006)).   \n I  find  that  claimant  has  met  her  burden  of  proving  by  a  preponderance of  the \nevidence that she suffered a compensable injury to her low back on November 21, 2022, \nin the form of an aggravation of her pre-existing low back condition.   \n To prove a compensable injury as the result of a specific incident, identifiable by \ntime  and  place  of  occurrence,  claimant  must  establish  by  a  preponderance of  the \n\nFarley – H208725 \n \n8 \n \nevidence  (1)  injury  arising  out  of  and  in  the  course  of  employment;  (2)  that  the  injury \ncaused internal or external harm to the body that required medical services or resulted in \ndisability; (3) medical evidence supported by objective findings, as defined in A.C.A. §11-\n9-102(16), establishing the injury; and (4) that the injury was caused by a specific incident \nidentifiable  by  time  and  place  of  occurrence.    A.C.A.  §11-9-102(4)(A)(i); McCutchen  v. \nHuman Development Center, 2018 Ark. App. 239.   \n Here,  for  reasons  previously  discussed,  I  find  that  claimant  has  proven  that  her \ninjury arose out of and in the course of her employment with respondent.  Claimant was \nin the process of packing a box with various office supplies at the time she felt a pop and \npain in her low back.  I also find that claimant has proven that her injury was caused by a \nspecific  incident  identifiable  by  time  and  place  of  occurrence.    I  find  the  claimant’s \ntestimony regarding her compensable injury to be credible and entitled to great weight. \nWith respect to this issue, I note that claimant’s testimony is corroborated by the history \ncontained in the medical records. \n Finally, I also find that the claimant’s injury caused internal harm to her body that \nrequired  medical  services  or  resulted  in  disability  and  that  she  has  offered medical \nevidence supported by objective findings establishing the injury.   Although claimant did \nhave a history of lumbar back complaints for which she had received a lumbar epidural \nsteroid injection as recently as October 3, 2022, medical records indicate that the incident \non  November  21,  2022,  aggravated  that  pre-existing  condition.    As  previously  noted, \nMcGinty at Urgent Care on November 22, 2022 indicated that claimant felt a sudden pop \nin  her  sacral  region  while  bending  over  at  work  the  day  before.    As  a result  of  those \ncomplaints,  McGinty  ordered  a  new  lumbar  MRI  scan.    That  scan  was  performed  on \n\nFarley – H208725 \n \n9 \n \nNovember 28, 2022, and contains the following impression: \n  Mild multilevel spondylosis of the lumbar spine.  This \n  is increased from the prior exam at L4-5 and L5-S1 \n  levels. \n \n  At L5-S1, there is mild canal stenosis and left greater \n  than right lateral recess stenosis secondary to a new \n  central disc extrusion with caudad migration and \n  worsening moderate bilateral facet arthropathy. \n  Moderate bilateral foraminal narrowing.  (Emphasis \n  added.) \n \n \n Following  the  claimant’s  MRI  scan,  claimant  returned  to  Smith  on  December  6, \n2022,  Smith’s report contains the following diagnosis: \n  Acute onset low back buttock and bilateral leg pain \n  status post work injury on 11/21/22 at renew \n  aesthetics [in] Rogers with MRI showing interval \n  development of an L5-S1 small central disc  \n  extrusion with lateral recess and moderate neuro- \n  foraminal narrowing, lumbar radiculopathy. \n  (Emphasis added.) \n \n \n Smith went on to indicate that claimant had suffered from acute low back and leg \npain after her work accident and that a newer MRI scan showed development of an L5-\nS1 disc extrusion “and there is greater than 51% confidence that her work incident has \ncaused her acute complication of her low back hip and leg pain and interval findings on \nher MRI.”   Smith then went on to recommend repeat epidural steroid injections. \n Thus,  following  the  incident  on  November  21,  2022,  claimant  underwent a  new \nMRI scan which revealed new findings in the form of a disc extrusion at the L5-S1 level.  \nThis was noted in the MRI report and in the report of Smith.  In addition, Smith has opined \nthat there is a greater than 51% chance that her work accident caused the findings that \n\nFarley – H208725 \n \n10 \n \nare now present on the MRI scan.  Based upon these findings, I find that  claimant has \nproven that her injury caused internal harm to her body that required medical services; \nthat  she  has  offered  medical  evidence  supported  by  objective  findings  establishing  a \ncompensable  injury;  and that  claimant’s  accident  aggravated  her  pre-existing  low  back \ncondition. \n In summary, I find that claimant has met her burden of proving by a preponderance \nof the evidence that she suffered a compensable injury to her low back on November 21, \n2022. \n In reaching this decision, I also note that claimant sought medical treatment from \nthe emergency room on December 23, 2022.  Claimant testified that the day before that \nvisit she had family coming in for Christmas and she was standing on her feet for much \nof the day attempting to cook, resulting in increased low back pain.  The emergency room \nrecord of that date likewise indicates that claimant had been on her feet for long hours \ncooking  and  had  increased  low  back  pain.    Claimant  was  given  medication  along  with \npatches for treatment of her pain.  I do not find that this incident serves as an independent \nintervening cause with respect to claimant’s compensable injury.  There is no indication \nthat claimant was restricted from standing by her treating physicians.  In addition, by this \ntime, an MRI scan had already been performed indicating that claimant had a new disc \nextrusion  at  the  L5-S1  level  which  had  resulted  in  her  need  for  medical  treatment.  \nTherefore, I do not find that the incident of standing on her feet cooking negates or affects \na finding of compensability under the facts of this case. \n Respondent  is  liable  for  payment  of  all  reasonable  and  necessary  medical \ntreatment  provided  in  connection  with  claimant’s  lumbar  spine  injury.   This  includes \n\nFarley – H208725 \n \n11 \n \ntreatment for claimant’s low back recommended by Dr. Deimel. \n Claimant  also  contends  that  she  is  entitled  to  temporary  total  disability  benefits \nfrom November 22, 2022 through January 24, 2023.  Claimant’s injury is an unscheduled \ninjury.  A claimant who suffers an unscheduled injury is entitled to temporary total disability \nbenefits during their healing period and while they suffer a total incapacity to earn wages.  \nArkansas State Highway & Transportation Dept. v. Breshears, 272 Ark. 244, 613 S.W. 2d \n392 (1981).  \n While I find that claimant did remain within her healing period from the date of her \ninjury through January 24, 2023 based upon the medical reports, claimant did not begin \nsuffering a total incapacity to earn wages until November 30, 2022.  The day after her \naccident the claimant was seen by McGinty at Urgent Care who gave claimant medication \nand ordered an MRI scan.  However, his report does not indicate that he took claimant \noff of work.  Thereafter, Dr. Deimel indicated in a note dated November 30, 2022, that \nclaimant should remain off work from November 30, 2022 through January 5, 2023.  On \nDecember 6, 2022, Thurman Smith indicated that claimant should not perform any work \nuntil January 24, 2023.   \n Based upon this evidence, I find that claimant remained within her healing period \nand that she suffered a total incapacity to earn wages which would entitle her to temporary \ntotal disability benefits beginning November 30, 2022 and continuing through January 24, \n2023.   \n \nAWARD \n \nClaimant has met her burden of proving by a preponderance of the evidence that  \n\nFarley – H208725 \n \n12 \n \nshe  suffered  a  compensable  injury  to  her  low  back  while  employed  by  respondent  on \nNovember 21, 2022.  Respondent is liable for payment of all reasonable and necessary \nmedical treatment provided in connection with claimant’s compensable injury.  In addition, \nclaimant  is  entitled  to  temporary  total  disability  benefits  beginning  November  30,  2022 \nand  continuing  through  January  24,  2023.    Respondent  has  controverted  claimant’s \nentitlement to indemnity benefits awarded herein. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \nRespondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $445.95. \n All sums herein accrued are payable in a lump sum without discount. \n IT IS SO ORDERED. \n \n      _____________________________________ \n       GREGORY K. STEWART \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H208725 LAUREN FARLEY, Employee CLAIMANT OZARK REGIONAL VEIN & ARTERY CENTER, Employer RESPONDENT CONTINENTAL INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED JUNE 14, 2023 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washing...","fetched_at":"2026-05-19T23:06:25.540Z","links":{"html":"/opinions/alj-H208725-2023-06-14","pdf":"https://labor.arkansas.gov/wp-content/uploads/FARLEY_LAUREN_H208725_20230614.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}