{"id":"alj-H300170-2024-01-03","awcc_number":"H300170","decision_date":"2024-01-03","opinion_type":"alj","claimant_name":"Teresa Kimes","employer_name":"Independence At Home","title":"KIMES VS. INDEPENDENCE AT HOME AWCC# H300170 JANUARY 3, 2024","outcome":"denied","outcome_keywords":["granted:1","denied:5"],"injury_keywords":["back","lumbar","hip","knee"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/KIMES_TERESA_H300170_20240103.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"KIMES_TERESA_H300170_20240103.pdf","text_length":31813,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n WCC NO. H300170 \n \nTERESA KIMES, Employee CLAIMANT \n \nINDEPENDENCE AT HOME, Employer RESPONDENT \n \nGUARD INS. CO., Carrier RESPONDENT \n \n \n \n OPINION FILED JANUARY 3, 2024 \n \nHearing  before  ADMINISTRATIVE  LAW  JUDGE  ERIC  PAUL  WELLS  in  Fort  Smith, \nSebastian County, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by KAREN H. MCKINNEY, Attorney at Law, Little Rock, Arkansas. \n \n STATEMENT OF THE CASE \n \n On  October  5,  2023,  the  above  captioned  claim  came  on  for  a  hearing  at  Fort  Smith, \nArkansas.   A pre-hearing conference was conducted on August 7, 2023, and a Pre-hearing Order \nwas filed on August 8, 2023.   A copy of the Pre-hearing Order has been marked Commission's \nExhibit No. 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 this claim. \n 2.   The   relationship   of   employee-employer-carrier   existed   between   the   parties   on \nDecember 4, 2022. \n 3. The respondents have controverted the claim in its entirety. \n\nKimes – H300170 \n \n-2- \n 4. The claimant was earning sufficient wages to entitle her to compensation at the weekly \nrates  of  $144.00  for  both  temporary  total  disability  benefits  and  permanent  partial  disability \nbenefits. \n By agreement of the parties the issues to litigate are limited to the following: \n 1.  Whether  Claimant  sustained  a  compensable  injury  to  her  low  back  on  or  about \nDecember 4, 2022. \n 2.  Whether  Claimant  is  entitled  to  medical  treatment  for  her  compensable  low  back \ninjury. \n 3. Whether Claimant is entitled to temporary total disability benefits from December 15, \n2022, to a date yet to be determined. \n 4. Whether Claimant’s attorney is entitled to an attorney fee. \n The claimant's contentions are as follows: \n“The  claimant  contends  that  she  sustained  compensable  injury  to \nher lower back while attempting to move a patient on December 3 \n[sic],  2022.  She  contends  that  her  injury  has  required  reasonably \nnecessary   medical   services   and   has   rendered   her   temporarily \ntotally  disabled  from  December  5,  2022,  until  a  date  yet  to  be \ndetermined.  She  seeks  the  statutory  attorney’s  fee  for  her  attorney \non all appropriate benefits that might be subsequently awarded.” \n \n The respondents’ contentions are as follows: \n“Respondents   contend   that   the   claimant   cannot   prove   by   a \npreponderance  of  the  evidence  that  she  sustained  a  compensable \ninjury for which she is entitled to medical and indemnity benefits. \nSpecifically,  Respondents  contend  that  the  claimant  suffers  from \npre-existing  degenerative  disc  disease  for  which  she  has  received \ntreatment as far back as 2010 and that the claimant did not report a \nwork related injury occurring on December 3 [sic], 2022, or at any \ntime during her employment.” \n \n\nKimes – H300170 \n \n-3- \n The  claimant  in  this  matter  is  a  61-year-old  female  who  alleges  to  have  sustained  a \ncompensable low back injury on or about December 4, 2022. The claimant was employed by the \nrespondent  as  a  home  health  provider.  On  direct  examination,  the  claimant  provided  testimony \nabout her job duties generally and for the specific client she was servicing on December 4, 2022, \nwhen she alleges she was injured as follows: \nA I was working at Frances’s place as a home health provider. \n \nQ And what does that involve? \n \nA It involves cleaning, doing light housekeeping, and helping \nthem with their personal care and cooking a meal. \n \nQ What all is involved in this personal care? \n \nA Okay.  She  was  bed –  she  could  not  walk  or  nothing,  so  I \nhad  to  change  her  diaper,  her  bedding.  Give  her  a  sponge  bath, \ndress her. I put lotion on her. Comb her hair. \n \nQ Did your job involve moving clients? \n \nA No. I never did use the Hoyer lift. \n \nQ Did it involve that? Were you required to do that at times? \n \nA No, but  I did have to help like turn her in the bed so  that I \ncould make sure that – when you are changing her diaper and stuff, \nyou had to turn her. \n \nQ Okay.  You  didn’t  have  to  get  her  in  and  out  of  bed  or \nanything? \n \nA No, sir. \n \nQ All right. And none of your other clients – you were talking \nabout  one  client,  but  your  job  in  particular  didn’t  involve  getting \nclients in and out of beds, assisting them to go to the bathroom and \nthings like that? \n \nA No, not at all – no. I had very good clients. \n \n\nKimes – H300170 \n \n-4- \n The claimant testified that on December 4, 2022, she was in the process of changing the \nclient’s  undergarments,  here  a  diaper,  when  she  alleges  to  have  been  injured.  The  claimant \ntestified that the client, named Frances, was not being cooperative with her during the changing \nprocess.  Following  is  a  portion  of  the  claimant’s  very  lengthy  description  of  the  undergarment \nchanging: \nShe grabs ahold of the rail and I was trying to start the roll I \ncall it of all her stuff that needs to go under her and she lets go of \nthe rail and she says, “I can’t do this. It hurts.” \n I  said, “Okay,  Frances.”  I  said, “Frances,  you  are  going  to \nhave to help me.” \n So she done it again, so I put my arm up to hold her where \nshe  cannot  roll  back  over  and  I  can  proceed  to  roll  her  diaper  and \nall the items that she needed under her bed, her linens, and she kept \nhollering, “I  can’t  do  it.  It  hurts.  It  hurts.”  So  that  did  take  some \ntime. \n Then I went over on the other side and she has a Hoyer bar \nI guess you would say. I am not familiar with the words. I’ve never \ndone this work before in my life. And you have to straddle it and I \ntold her, “Let’s get this done. You are going to have to help me on \nthis. It is harder.” \n Well, she went to roll back over and she started telling me, \n“I  can’t  do  this,”  blah,  blah.  So  when  I  was  bent  over  and  I  was \nrolling up the unsanitary linens and trying to roll out the other one \nand I was tugging on it and she lets go and just says she can’t do it \nno  more.  When  I  leaned  over,  I  had  a  pain  in  my  back.  I  stopped \nright then. And I told her, “Frances, I have hurt  my back. You are \ngoing to have to help me. I cannot do this.” \n She says, “Well, I can’t, either.” \n Eventually,  I  did  get  it  done,  but  I  did  not  do  everything \nlike it should have been. As soon as I got her where she was able to \nlay  down  on  the  linens  and  all  that –  and  on  one  of  the  diapers,  I \ndid  not  tape  down.  I  said  that  she  needed  to  do  that  and  I  said, \n“I’ve got to sit down.” I sat down for a minute. \n \n The claimant then left the client’s home to go to  a previously scheduled personal  event. \nEn route, the claimant testified that she called “Samantha” at the respondent’s office to report her \nback injury, but no one answered. The claimant testified upon returning from her personal event \n\nKimes – H300170 \n \n-5- \nshe  called  someone  at  the  respondent’s  office  named  Tiffany.  The  following  is  a  portion  of  the \nclaimant’s direct examination testimony: \nSo  I  went  to  church.  Coming  back  from  church,  I  called \nIndependence  and  I  got  Tiffany.  She  told  me  that  she  will  tell  the \ngirls, which the girls was Christy and Carolyn. And she said, “Just \ntake  it  easy  and  just  relax  and  they  will  get  ahold  of  you,”  you \nknow. I said, “Okay.” \n \nThe claimant testified that she returned to the client’s home and took it easy. \n The claimant’s testimony about what occurred over the next few days regarding her work \nand calling in to report her injury is confused. However, at some point in the next few days, she \nclaims  she  called  Carolyn,  a  supervisor  for  the  claimant,  and  told  her “I  can’t  work  because  of \nthe pain in my back.” Carolyn Langley was called as a witness by the respondent in this matter. \nMs. Langley is a scheduling supervisor for the respondent. Ms. Langley was questioned on direct \nexamination about her knowledge of the claimant’s allegation of a low back injury as follows: \nQ Now,  we  are  here  because  Ms.  Kimes  is  claiming  that  she \ninjured her back on December the 4\nth\n, 2022, while working for Ms. \nFrances. Are you aware that is her allegations? \n \nA I’m aware that that is the allegation. \n \nQ Okay.  What  do  you  know,  if  anything,  about  what  Ms. \nKimes claims about what happened on December 4\nth\n? Did she tell \nyou anything? \n \nA No, ma’am. \n \nQ What do you know? \n \nA Nothing other than just the call-ins for needing to go to the \ndoctor for her back hurting and us requesting a doctor’s release to \ncome back to work, as we would with any caregiver. \n \nQ So you are aware that she reported she needed to go to the \ndoctor for back pain? \n \n\nKimes – H300170 \n \n-6- \nA Yes. \n \nQ Was  there  any  discussion  about  why  she  had  back  pain  or \nhow it occurred? \n \nA No, ma’am. \n \nQ Did she ever volunteer to you that she got hurt at work? \n \nA No, ma’am. \n \nQ When did you become aware that she was claiming she got \nhurt at work? \n \nA It had to have been early this year. \n \nQ So January of 2023? \n \nA That sounds correct. \n \nQ And  that  is  when  we  know  she  filed  a  claim  with  the \nWorkers’   Compensation   Commission.   I   believe   it   was   filed \nJanuary  8\nth\n  or  9\nth\n,  somewhere  around  there,  of  2023.  Does  that \nsound like – \n \nA Sounds accurate, yes. \n \n Ms. Langley testified that she was one of the individuals that makes work schedules for \nthe respondent’s employees. She also testified about how schedules are changed and that records \nare  kept  of  the  process.  Following  is  a  portion  of  that  testimony  from  Ms.  Langley  and  the \ntestimony regarding the claimant’s changes of schedule during the time period of her alleged low \nback injury: \nQ And are you one of the people that make the schedule? \n \nA Yes. \n \nQ And if she has to change her schedule for any reason, how \ndoes she go about doing that? \n \nA She would actually call my personal phone often. \n\nKimes – H300170 \n \n-7- \nQ And are you aware of her doing that after  December 4\nth\n of \n2022? \n \nA The call-ins mainly is all she called for. \n \n MS. MCKINNEY: All right. May I approach? \n \n THE COURT: You may. \n \nQ [BY MS. MCKINNEY]: I have some business records. Did \nyou all make note of the call-ins. \n \nA Yes. \n \nQ All right. And I have highlighted December the 3\nrd\n, so this \nwould  have  been  a  Saturday,  is  that  correct,  if  December  4\nth\n  is  a \nSunday? \n \nA Yes. \n \nQ CG, would that be caregiver? \n \nA Caregiver, yes. \n \nQ And that is Teresa Kimes; correct? \n \nA Uh-huh. \n \nQ Is that a “yes”? \n \nA Yes. \n \nQ So was she scheduled to work on December the 3\nrd\n? \n \nA I have access to that. I can pull that up. \n \nQ Okay.  I  have  what  I  purport  to  be  her  December  schedule. \nIs that what you have access to? \n \nA Yes, ma’am. \n \nQ All  right.  It  shows  she  is  not  working  on  December  3\nrd\n; \ndoesn’t it? \n \nA It shows because she was sick and throwing up. \n\nKimes – H300170 \n \n-8- \n \nQ So she was sick – \n \nA So she was pulled from work that day. \n \nQ So she may have been scheduled, but she calls in and calls \nout; correct? \n \nA Correct. \n \nQ She was throwing up on the night before this alleged injury \non December the 4\nth\n? \n \nA Correct. \n \nQ All right. And then we have her working on December the \n4\nth\n.  Are  you  aware  of  any  complaints  of  anything  occurring  with \nMs. Kimes working on December the 4\nth\n? \n \nA The only one that I am aware of is when I received a phone \ncall  on  the  5\nth\n  from  the  client  herself  asking  us  to  remove  Teresa \nand never send her back due to a temperamental situation. \n \nQ Okay. So December the 5\nth\n is the Monday after this? \n \nA Correct. \n \nQ All   right.   Did   you   have   that   conversation   with   Ms. \nFrances? \n \nA I do believe that I did take the phone call myself because I \nam the one who put the caregiver block in for Frances. \n \nQ So  she  was  blocked  from  treating  Frances  after  December \nthe 4\nth\n; is that correct? \n \nA Correct. \n \nQ All right. And then looking at these reports, are you aware \nof any other call-ins after December the 4\nth\n where she called to be \noff work? \n \nA Yes. \n \nQ And when was that? \n\nKimes – H300170 \n \n-9- \n \nA There was one on the 15\nth\n. \n \nQ Okay. Did you take that one? \n \nA I believe so. \n \nQ Okay. And what do you recall from that? \n \nA I believe she was calling in to go to the doctor because her \nback hurt. \n \nQ And  was  there  any  discussion  during  that  conversation \nabout how or why she hurt her back? \n \nA No, ma’am. \n \nQ Did  she  at  any  time  report  to  you  that  she  hurt  her  back \ntaking care of Ms. Frances on December 4\nth\n? \n \nA No, ma’am. \n \n On  cross  examination  the  claimant’s  attorney  asked  Ms.  Langley  about  the  client, \nFrances, blocking the claimant as follows: \nQ Why was she blocked from treating Ms. Frances? \n \nA Why? \n \nQ Yes. \n \nA The allegations were that she was cussing and screaming at \nthe client and threw the client’s phone. \n \nQ Okay. So Ms. Frances didn’t want her out there? \n \nA Correct. She didn’t want her back. \n \nQ Was  that  the  only  day –  was  the  5\nth\n  (sic)  the  only  day  she \nactually treated her? \n \nA No. \n \nQ How many days prior to that had she been treating her? \n\nKimes – H300170 \n \n-10- \n \nA I cannot recall without looking back on the schedule. \n \nQ Could you look back on it and give me an idea? \n \nA Sure. \n \n (Whereupon, the witness is looking on her phone.) \n \n MS. MCKINNEY: Your  Honor,  I  am  approaching  and \nhanding business records to Ms. Langley. \n \n THE COURT: So noted. \n \n THE WITNESS: It looks like one, two, three – \n \n MS. MCKINNEY: If I may ask – I mean the question is \nhow  many  days.  It  may  be  faster  to  indicate  when  did  she  start \nworking with Ms. Frances. \n \n THE WITNESS: She had Ms. Frances  as  a permanent \nmorning client beginning of June of ’22. \n \n THE COURT: Mr. Ellig, is that satisfactory? \n \n MR. ELLIG:   That is satisfactory. \n \nQ [BY MR. ELLIG]: And  apparently  there  was  a  falling \nout  on  the  5\nth\n,  but  everything  went  well  from  June  until  the  5\nth\n  of \nDecember? \n \nA On  the  4\nth\n  there  was  a  falling  out.  The  client  called  on  the \n5\nth\n. \n \nQ The client called on the day we are saying she was hurt. \n \nA No, the next day. \n \n The  claimant  was  asked  on  cross  examination  about  her  testimony  regarding  reporting \nher alleged low back injury and any request for medical treatment as follows: \nQ All  right.  Then  I  am  jumping  to  December  the  4\nth\n.  You \nclaimed this incident at work; right? \n \n\nKimes – H300170 \n \n-11- \nA Yes, ma’am. \n \nQ You claim you called it in and you told everybody at work \nthat you hurt yourself at work. Is that your testimony? \n \nA Yes, ma’am. \n \nQ But you don’t go to the doctor and you don’t ask to be sent \nto the doctor; do you? \n \nA No, ma’am. \n \nQ All  right.  You  claim  that  on  December  the  15\nth\n  you  are  in \npain, so you call in and you get up and you go to the Urgent Care \nClinic; correct? \n \nA Yes, ma’am. \n \n On  December  15,  2022,  the  claimant  was  seen  at  Baptist  Urgent  Care  by  NP  Shelby \nValerie. The medical record from that visit gives a chief complaint of back pain. The history of \npresent illness section states: \nPatient Reports: \nBack pain [Onset: 1 Week(s); Duration: 1 Week(s); Free text: Pt is \nhome health nurse has hurt back working with patients, worsening \nback pain for a week.] \n \nThe claimant underwent x-rays of her lumbar spine and received injections in her right buttocks. \nThe  claimant  was  referred  to  neurosurgery  for  the  following  stated  reason, “Severe  multi-level \ndegenerative change of the spine, Grade 1 anterolisthesis of L-5 on S-1.” \n On December 20, 2022, the claimant was seen at Baptist Health Family Clinic by APRN \nNycole Oliver. Following is a portion of that medical record: \nReason for Visit: \nBack Pain \nTeresa L. Kimes is a 60 y.o. female who has a past medical history \nof   Diabetes   mellitus   (HCC),   Hyperlipidemia,   Hypertension, \nObesity,   RLS   (restless   legs   syndrome),   Shingles,   and   SOB \n(shortness of breath). Patient presents with: \n\nKimes – H300170 \n \n-12- \nBack Pain \nComplains  of  lower  back  pain.  She  went  to  urgent  care  not  long \nago and was told she had spinal enthesopathy and needed to see a \nneurosurgeon. She would like a referral. She states this is going on \nfor  years.  She  has  recently  been  on  a  Medrol  Dosepak  and \ncyclobenzaprine.   She   states   that   she   has   tried   injections   and \nphysical therapy. She does see an orthopedic doctor about this but \nstates  none  of  it  is  helping.  She  declines  chiropractic  referral. \nPlease   note,   this   was   prepared   using   DragonSpeak   dictation \nsoftware. Any typographical errors or other abnormal wording may \nbe related to this dictation system. \n \nAt that time, the claimant was given an ambulatory referral to neurosurgery.  \n On  December  21,  2022,  the  claimant  was  seen  at  the  Baptist  Hospital  Emergency \nDepartment. Following is a portion of that medical report: \nHistory \nChief Complaint \nPatient presents with \n* Back Pain \n \nTeresa  L.  Kimes  is  a  60  y.o.  female  to  the  emergency  department \nwith complaints  of increasing lower back pain. She states that she \nhas been having gradual increase in pain over the past 7 months or \nso  however  the  past  week  she  has  had  much  more  trouble  with  it. \nShe is she does heavy lifting at work as she works in home health \nand was seen last week at urgent care and had imaging done and is \nsubsequently   seen   her   PCP   who   has   sent   a   referral   for \nneurosurgery  evaluation.  She  has  been  on  Medrol  Dosepak  along \nwith  Flexeril  however  this  does  not  seem  to  be  helping  her  pain. \nThe  pain  goes  mostly  into  her  right  hip  and  leg  but  sometimes  on \nthe  left  side  as  well.  No  bowel  or  bladder  incontinence.  No  falls. \nShe has been trying to use a cane to help as well. \n \nThe  claimant  was  diagnosed  with “chronic  right-sided  low  back  pain  with  right-sided  sciatica.” \nThe claimant was also prescribed hydrocodone during her emergency department visit.  \n On  January  6,  2023,  the  claimant  underwent  an  MRI  of  the  lumbar  spine  at  Baptist \nHealth.  The  diagnostic  report  from  that  visit  was  authored  by  Dr.  James  Ireland.  Following  is \nportion of that report: \n\nKimes – H300170 \n \n-13- \nFindings: \nAlignment: Normal. \n \nVertebral bodies: Normal height. \n \nMarrow: No signal abnormality. \n \nIntervertebral discs: Moderate disc space narrowing at L3-4. \n \nSpinal cord: The imaged  cord is normal in size and signal and the \nconus medullaris terminates at a normal level. \n \nCauda equine: Unremarkable. \n \nSoft  tissues:  The  included  soft  tissues  of  the  abdomen  and  pelvis \nare unremarkable. \n \nL1-2: Normal. \n \nL2-3: Normal. \n \nL3-4:  Posterior  disc  protrusion  with  moderate  anal  narrowing  to \n0.6  cm.  Ligament  flavum  and  epidural  fat  hypertrophy  contribute \nto  canal  narrowing.  There  is  severe  left  and  moderate  to  severe \nright foraminal narrowing. \n \nL4-5:  Posterior  disc  protrusion  with  mild  canal  narrowing  to  0.8 \ncm.  Ligament  flavum  and  epidural  fat  hypertrophy  contribute  to \ncanal  narrowing.  There  is  mild  right  and  moderate  left  foraminal \nnarrowing. \n \nL5-S1: Normal. \n \nImpression: \nDegenerative  changes  of  the  lumbar  spine  which  are  described  in \ndetail by level above. \n \n On  February  21,  2023,  the  claimant  was  seen  by  Dr.  Gautam  Gandhi,  a  neurosurgeon. \nFollowing is a portion of that medical report: \nChief Complaint \nPatient presents with \n* Back Pain \n \n\nKimes – H300170 \n \n-14- \nBack Pain \nThis is a chronic problem. The current episode started more than 1 \nyear ago (>10 years). The problem occurs constantly. The problem \nhas  been  gradually  worsening  since  onset.  The  pain  is  present  in \nthe  lumbar  spine.  The  quality  of  the  pain  is  described  as  aching, \nburning, cramping, shooting and stabbing. The pain radiates to the \nright thigh, right foot, right knee, left thigh, left knee and left foot. \nThe pain is at a severity of 9/10. The pain is severe. The symptoms \nare aggravated by bending, position, standing and twisting (ADLs, \nambulation).  Associated  symptoms  include  leg  pain,  numbness, \ntingling and weakness. She has tried bed rest, heat, home exercises, \nNSAIDs  and  muscle  relaxant  for  the  symptoms.  The  treatment \nprovided no relief. \n*** \nAssessment/Plan \nTeresa  L.  Kimes  is  a  60  y.o.  female  initially  evaluated  2/21/2023 \nfor  chronic  neurogenic  claudication  and  progressively  worsening \nmechanical low back pain and symptoms in the last 6 months with \nimaging    showing    multisegmental    lumbar    spondylosis    with \nsignificant   spondylosis   worse   at   L3-4   with   collapse   of   the \ninterspace and severe central canal stenosis at L3-4 and L4-5. Her \nimaging  is  slightly  worse  compared  to  an  MRI  performed  in  May \n2018. Clinically she feels significantly worse in the last 6 months. \nShe has not undergone conservative therapy. I personally reviewed \nthe  clinic  reports  as  well  as  imaging  studies.  Discussed  surgical \nand nonsurgical treatment  options. The patient had an  opportunity \nto  ask  questions  and  their  questions  were  answered  and  they \nendorsed  understanding  and  agreement  with  the  plan  of  care. \nDiscussed  conservative  treatment  including  weight  loss,  physical \ntherapy,  and  aquatic  therapy.  I  personally  reviewed  the  clinic \nreports   as   well   as   imaging   studies.   Discussed   surgical   and \nnonsurgical  treatment  options.  The  patient  had  an  opportunity  to \nask questions and their questions were answered and they endorsed \nunderstanding and agreement with the plan of care. \n \n-Discussed continued conservative treatment and weight loss. \n-Discussed L3-5 posterior fixation with L3 laminectomy and L4-5 \nTLIF. \n-AP and lateral lumbar x-rays. \n-Return to clinic in 6 months. \n \n On  May  4,  2023,  the  claimant  was  seen  by  Dr.  Michael  Wolfe  at  Baptist  Health \nOrthopedics. Following is a portion of that medical record: \n\nKimes – H300170 \n \n-15- \nHPI: \nPatient   is   a   61-year-old   white   female   came   in   today   chief \ncomplaint  of  low  back  pain  she  has  had  treatment  and  known \ndegenerative changes lumbar spine in the past but she was lifting a \npatient is a home health aide on December 4, 2022 felt a pull in her \nlow   back   she   had   progressive   severe   pain   she   was   seen   by \nneurosurgeon  in  Conway  who  recommended  a  fusion  I  am  going \non  this  from  history  I  do  not  have  these  records  available  again \nhistory  is  from  the  patient  she  is  considering  having  surgery  later \nthis year no numbness or weakness. \n*** \nAssessment: \nRadiographs show degenerative changes at L3-4, L4-5, and L5-S1 \nwith  grade  1  spondylolisthesis  at  L5-S1  findings  are  somewhat \nsimilar  to  what  was  noted  3  years  ago  but  she  definitely  has \nprogressive  disc  deterioration  and  joint  space  narrowing  she  is \nhaving mechanical pain  related to her disc  changes and  I do think \nthat  surgical  intervention  could  be  of  help  to  her  because  she  is \nhaving such severe problems she is to follow-up with the physician \nin  Conway  she  will  continue  on  Mobic  at  present  I  will  see  her \nback in clinic on a as needed basis. No follow-ups on file. \n \n The claimant has asked the Commission to determine if she sustained a compensable low \nback injury on or about December 4, 2022. It is the claimant’s burden to prove that she sustained \na  compensable  low  back  injury.  In  order  to  do  so,  she  must  prove  the  existence  of  objective \nmedical findings of the low back injury she alleges. The claimant’s January 6, 2023, MRI of her \nlumbar  spine  certainly  shows  multiple  areas  of  derangement  in  the  claimant’s  lumbar  spine. \nHowever, the claimant also underwent an MRI of the lumbar spine on June 12, 2015, which had \nvery similar findings to her January 6, 2023, MRI. Following is a portion of the claimant’s 2015 \nlumbar spine MRI: \nAt L3-4, there is a posterior disc herniation more prominent to the \nleft  of  midline  with  spinal  and  bilateral  foraminal  stenosis  worse \non the left than the right. \n \nAt  L4-5,  there  is  a  disc  bulge  and  degenerative  facet  change  with \nspinal and bilateral foraminal stenosis. \n \n\nKimes – H300170 \n \n-16- \nAt   L5-S1,   there   is   degenerative   facet   change   with   bilateral \nforaminal stenosis. \n \nAt  L1-2,  there  is  a  mild  disc  bulge  without  spinal  or  foraminal \nstenosis. \n \nThere is degenerative facet change at all levels. \n \nImpression: \n1.  At  L3-4,  there  is  a  posterior  disc  herniation  with  spinal  and \nbilateral foraminal stenosis, worse on the left than the right. \n2. At L4-5, there is a disc bulge and degenerative facet change with \nspinal and bilateral foraminal stenosis. \n3.  At  L5-S1,  there  is  degenerative  facet  change  with  bilateral \nforaminal stenosis. \n4. At L1-2, there is a slight disc bulge without spinal stenosis. \n5. Degenerative facet change at all levels. \n \n Dr. Gandhi,  whom  the  claimant  saw  on  February  21,  2023,  does  not  reference  the \nclaimant’s June 12, 2015, lumbar spine MRI in his medical report, but does reference a May of \n2018  MRI.  That  May  of  2018  MRI  does  not  appear  in  the  records  submitted  into  evidence.  In \nreferring  to  her  January  6,  2023,  MRI,  Dr.  Gandhi  states, “Her  imaging  is  slightly  worse \ncompared to an MRI performed in May 2018.” \n Dr.  Wolfe,  who  saw  the  claimant  on  May  4,  2023,  also  treated  the  claimant  for  her  low \nback pain on three dates prior to her alleged injury; those being April 20, 2022, June 22, 2022, \nand  August  22,  2022.  In  the  May  4,  2023,  medical  record  he  states, “Radiographs  show \ndegenerative changes at L3-4, L4-5, and L5-S1 with grade 1 spondylolisthesis at L5-S1. Findings \nare  somewhat  similar  to  what  was  noted  three  years  ago  but  she  definitely  has  progressive  disc \ndeterioration  and  joint  space  narrowing.  She  is  having  mechanical  pain  related  to  her  disc \nchanges...” \n Medical  records  introduced  into  evidence  by  the  respondent  show  that  the  claimant  has \nbeen treating for low back pain since June 29, 2010. In review of the claimant’s pre-December 4, \n\nKimes – H300170 \n \n-17- \n2022,  medical  records  and  post-December  4,  2022,  medical  records,  I  do  not  find  the  claimant \nable  to  prove  the  existence  of  objective  medical  findings  of  low  back  injury  relating  to  her \nalleged acute incident of December 4, 2022. Here, the evidence shows a continuation of her long, \nchronic  lower  back  issues  and  not  an  acute  incident  as  she  alleges.  The  claimant  is  unable  to \ndemonstrate objective medical evidence of the December 4, 2022, injury she alleges. \n Even  if  the  claimant  were  able  to  prove  the  existence  of  objective  medical  evidence  of \nlow  back  injury  as  she  alleges,  she  would  be  unable  to  prove  the  required  causal  connection \nbetween her 2023 MRI and the December 4, 2022, incident she alleges. \n In direct testimony at the hearing in this matter, the claimant stated, “When I leaned over, \nI had a pain in my back.” In an AR-C form filed with the Commission, the claimant filled out the \nsection which states, “Briefly describe the cause of the injury” as follows: \nWorked  as  a  Home  Health  Provider.  In  June  of  2022,  I  was \nswitched to another client. The client was unable to get out of bed. \nHad  to  bathe  and  change  diaper  and  change  linens.  Moving  her \nwas hurting my back. A lot of lifting and moving client. I told the \nschedulers in the office about that. Lifting heavy person. \n \n In the claimant’s direct examination testimony at the hearing, the claimant was clear that \nshe never lifted clients.  \nQ Did your job involve moving clients? \n \nA No. I never did use the Hoyer lift. \n \nQ Did it involve that? Were you required to do that at times? \n \nA No, but I did have to help like turn her in the bed so that I \ncould make sure that – when you are changing her diaper and stuff, \nyou had to turn her. \n \nQ Okay.  You  didn’t  have  to  get  her  in  and  out  of  bed  or \nanything. \n \n\nKimes – H300170 \n \n-18- \nA No, sir. \n \nQ All  right.  And  none  of  your  clients –  you  were  talking \nabout  one  client,  but  your  job  in  particular  didn’t  involve  getting \nclients in and out of beds, assisting them to go to the bathroom and \nthings like that? \n \nA No, not at that – no. I had very good clients. \n \n However,  she  told  medical  providers  at  the  Baptist  Health  Emergency  Department  on \nDecember 21, 2022, “she is she does heavy lifting at work as she works in home health...” On \nMay  4,  2023,  the  claimant  told  Dr.  Wolfe, “she  was  lifting  a  patient,  is  a  home  health  aide  on \nDecember  4,  2022,  felt  a  pull  in  her  low  back.  She  had  progressive  severe  pain...”  The \nclaimant’s credibility is very low. I simply do not believe that the incident she alleges occurred. \nThe  claimant  says  she  reported  the  incident  to  Ms.  Carolyn  Langley;  Ms.  Langley  denies  that \noccurred. The claimant in this matter is unable to prove by a preponderance of the evidence that \nshe sustained a compensable low back injury on or about December 4, 2022. \n From a review of the record as a whole, to include medical reports, documents, and other \nmatters properly before the Commission, and having had an opportunity to hear the testimony of \nthe  witnesses  and  to  observe  their  demeanor,  the  following  findings  of  fact  and  conclusions  of \nlaw are made in accordance with A.C.A. §11-9-704: \n FINDINGS OF FACT & CONCLUSIONS OF LAW \n 1.  The  stipulations  agreed  to  by  the  parties  at  the  pre-hearing  conference  conducted  on \nAugust 7, 2023, and contained in a Pre-hearing Order filed August 8, 2023, are hereby accepted \nas fact. \n 2. The claimant has failed to prove by a preponderance of the evidence that she sustained \na compensable injury to her low back on or about December 4, 2022. \n\nKimes – H300170 \n \n-19- \n 3. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto medical treatment. \n 4. The claimant has failed to prove by a preponderance of the evidence that she is entitled \nto temporary total disability benefits from December 15, 2022, to a date yet to be determined. \n 5. The claimant has failed to prove by a preponderance of the evidence that her attorney \nis entitled to an attorney fee in this matter.  \n ORDER \nPursuant  to  the  above  findings  and  conclusions,  I  have  no  alternative  but  to  deny  this \nclaim in its entirety. \nIf  they  have  not  already  done  so,  the  respondents  are  directed  to  pay  the  court  reporter, \nVeronica Lane, fees and expenses within thirty (30) days of receipt of the invoice. \n IT IS SO ORDERED. \n \n \n                                ____________________________                                              \n       HONORABLE ERIC PAUL WELLS \n       ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION WCC NO. H300170 TERESA KIMES, Employee CLAIMANT INDEPENDENCE AT HOME, Employer RESPONDENT GUARD INS. CO., Carrier RESPONDENT OPINION FILED JANUARY 3, 2024 Hearing before ADMINISTRATIVE LAW JUDGE ERIC PAUL WELLS in Fort Smith, Sebastian County, Arkansas. Claimant repr...","fetched_at":"2026-05-19T22:57:58.382Z","links":{"html":"/opinions/alj-H300170-2024-01-03","pdf":"https://labor.arkansas.gov/wp-content/uploads/KIMES_TERESA_H300170_20240103.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}