{"id":"alj-H300389-2025-04-24","awcc_number":"H300389","decision_date":"2025-04-24","opinion_type":"alj","claimant_name":"Tracy Miller","employer_name":"Baptist Health Regional Hospitals","title":"MILLER VS. BAPTIST HEALTH REGIONAL HOSPITALS AWCC# H300389 April 24, 2025","outcome":"granted","outcome_keywords":["granted:4"],"injury_keywords":["back","hip","lumbar","neck","herniated","shoulder","strain","repetitive"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/MILLER_TRACY_H300389_20250424.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"MILLER_TRACY_H300389_20250424.pdf","text_length":23134,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H300389 \n \nTRACY MILLER, EMPLOYEE CLAIMANT \n \nBAPTIST HEALTH REGIONAL HOSPITALS, EMPLOYER RESPONDENT \n \nCLAIMS ADMMINISTRATIVE SERVICES                                                         RESPONDENT \n \n \n OPINION FILED APRIL 24, 2025 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by JARROD S. PARRISH, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On February  10,  2025,  the  above  captioned  claim  came  on  for a hearing  at Fort  Smith, \nArkansas. A pre-hearing conference was conducted on November 7, 2024, and a pre-hearing order \nwas filed on that same date. A copy of the pre-hearing order has been marked as Commission’s Exhibit \n#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.  \n2.  The employee/employer/carrier relationship existed on March 26, 2021. \n3.  The compensation rates are the maximum.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \nwere limited to the following: \n1.  Whether claimant is entitled to additional medical benefits. \n\nMiller-H300389 \n2 \n \n2.  Determination of the extent of permanent injury to claimant’s back. \n3.  Attorney fees. \nAll other issues are reserved by the parties. \nThe claimant contends that “She is not only entitled to an updated MRI regarding her back; \nshe is also entitled to further evaluation regarding her hip as recommended by Dr. Frank Tomecek. \nShe was assessed an 18% impairment rating to the body as a whole regarding her back; however, it is \nher recollection that she only was paid for a 10% impairment rating. The claimant contends that it is \npremature  to  determine  the  extent  of  her  permanent  impairment  at  this  time  since  diagnostic \nevaluation  regarding  her  back and  hip  as  directed  by  Dr.  Tomecek  is  still  pending. However,  the \nclaimant  reserves  her  right  to  litigate  extent  of  permanent  impairment  as  well  as  possibly  extent  of \nwage loss disability. The claimant contends that her attorney is entitled to an attorney’s fee in regard \nto  any  disability  benefits  to  which  she  is  determined  to  be  entitled  that  the  respondents  have  not \nalready paid.” \nThe  respondents  contend  that  “The  MRI  recommended  by  Dr.  Tomecek  was actually \napproved by respondent/adjuster on September 18, 2024. Respondents are unsure why that diagnostic \ntest has not been scheduled. With regard to the impairment rating, it is respondents’ position that the \n8%  assigned  subsequent  to  testing  and  measurements  taken  by  the  Functional  Testing  Centers  on \nAugust 24, 2022, is per the AMA Guides, Fourth Edition, and is the appropriate rating for claimant’s \nlumbar spine. It is respondents’ position that Dr. Tomecek’s rating was not assigned per the AMA \nGuides, Fourth Edition, and is a liability of respondent/carrier.”   \n From a review of the entire record including medical reports, documents, and other matters \nproperly before the Commission, and having had an opportunity to hear the testimony of the witness \nand  to  observe  her  demeanor,  the  following  findings  of  fact  and  conclusions  of  law  are  made  in \n\nMiller-H300389 \n3 \n \n \naccordance with A.C.A. §11-9-704: \n \n  FINDINGS OF FACT & CONCLUSIONS OF LAW \n \n 1.      The  stipulations  agreed  to  by  the  parties  at  a  pre-hearing  conference  conducted  on \nNovember 7, 2024, and contained in a pre-hearing order filed on that same date are hereby accepted \nas fact. \n 2.     Claimant has met her burden of proof by a preponderance of the evidence that she is \nentitled to additional medical treatment as directed by Dr. Frank Tomacek. \n 3.      Claimant’s request for a permanent impairment rating was withdrawn. \n \n FACTUAL BACKGROUND \n There  was an  unusual  amount of activity  in  this  matter  after  the  hearing.  On  February  12, \n2025, respondent submitted an email regarding the use of a double inclinometer by Dr. Tomacek to \nassess an 18% impairment rating to claimant. Having reviewed that email, claimant agreed that test \nwas not an objective finding and withdrew her claim for a permanent impairment rating of 18%. This \nexchange is blue backed to this record.  \n Shortly after the hearing, claimant’s attorney became aware of a document prepared by Dr. \nTomacek which had been requested by the claims adjuster for respondents, but which had not been \nprovided  to  claimant. A  Motion  to Submit  Newly  Discovered  Evidence was  filed  on  February  17, \n2025. Respondents opposed  this  motion. After  considering  the  circumstances,  I entered  an  Order \ngranting the claimant’s motion, allowing respondents the  opportunity  to depose  Dr.  Tomacek  or \notherwise present  evidence in  response  to  that document. Respondent  declined  to  do  so. This \nexchange is blue backed to this record. The addendum from Dr. Tomacek is addressed in the review \nof the medical records section of this opinion. \n\nMiller-H300389 \n4 \n \n \n When preparing this Opinion, I noticed that the compensability of claimant’s injury was not \nspecifically addressed in the stipulations. Respondent had paid for medical treatment in the past and \nhad paid claimant’s impairment rating, so I understood that I did not need to decide compensability. \nTo  clarify  that  this  was  a  stipulation,  I  emailed  the attorneys  on  April  23, 2025, and  they  both \nconfirmed this was an accepted claim. This exchange is blue backed to this record.  \nHEARING TESTIMONY \n \n Claimant was the only witness to testify at the hearing. She was injured in March 2021 when \nshe was helping a patient get on to an x-ray table when the patient started to fall. Claimant grabbed \nhim to keep him from falling and felt a pop in her back immediately. She was sent to Occupational \nMedicine and eventually wound up under the care of Neurosurgeon Dr. Frank Tomecek. Dr. Tomecek \nrecommended  that  claimant  have  surgery  on  her  back,  but  she  wanted  to  try  other  options  before \nundergoing an invasive  surgery. Claimant said  she underwent  physical  therapy  and  had a  couple  of \ninjections; she also went to Genesis Neck and Back for decompression treatment. She recently had \nundergone an MRI, after which Dr. Tomecek recommended a lumbar epidural steroid injection\n1\n. She \nhad not had that injection as of the time of the hearing because the insurance carrier denied that it \nwas appropriate. She stated that she was still having pain in her back and was willing to undergo the \nlumbar epidural steroid injection.  \n On cross-examination, claimant stated that she no longer worked for respondent Baptist but \nis  working  a  different  type  of  radiology  at  Mercy  Hospital  now. She  has  been  able  to  perform  her \nduties at Mercy without her job being modified because of her back injury. She was aware that she \nhad a nerve conduction study on her extremities that revealed no evidence of peripheral neuropathy. \n \n1\n I used the term claimant used in her testimony.  As the medical records show, Dr. Tomacek recommended a \ntransforaminal epidural steroid injection.  While that involves an injection into the back, it is not the same procedure.  \n\nMiller-H300389 \n5 \n \n \nShe had bilateral medial branch block injections which did not help. In July 2022, claimant stated that \nshe had an L3-4 epidural steroid injection and still had pain in her buttocks that was causing her to \nhave  difficulty  sleeping  at  night. Claimant  did  not  recall  what  Dr.  Tomecek  found during  her \nexaminations  on  September  5, 2024, and  January  9,  2025,  but  would  not  argue  with  what  was \ncontained in the report. She believed her gait was normal and that her sensation to touch was intact. \nShe stated that it was correct that she had not undergone physical therapy since 2022. \n On redirect-examination, claimant stated that she was shifting in her chair because she always \nhas a burning pain in her left buttock area. Switching her position in the chair relieves the pressure \nshe feels.  \n Claimant  again  stated  that  she  had  not  undergone  surgery  on  her  back  since  Dr.  Tomecek \nrecommended it but had no idea if the herniated disc had just disappeared over-time. She knew the \npain had not disappeared and it was pain that she did not have before she was injured.  \n On recross-examination, claimant agreed with the MRI report that showed that she had mild \ndisc bulges at a few levels with no stenosis. She did not have a report that showed a herniated disc.  \n \nREVIEW OF THE EXHIBITS \n \n Claimant submitted thirty-eight pages of medical records beginning April 2, 2021, and ending \nJanuary  13,  2025. Respondents  submitted  seventy-three  pages  with little duplications  to  what  was \nsubmitted by claimant. This review will attempt to summarize these records in chronological order. \n There were records predating the injury in question going back to August 2011 and concluding \nin  November  2012. These  records  demonstrate  that  in  2012,  claimant  was  treated  for  moderate \npersistent lower hip and lower back pain with shooting pains in her left leg. Claimant related that she \nhad  tripped  over clothes  and  twisted  her  back,  but  this  does  not  appear  to  be  related  to  her \nemployment. Claimant had a CT on February 10, 2012, which showed:  \n\nMiller-H300389 \n6 \n \n \n1. Left paracentral  bulging  of  the  disc  at  level  L4-L5. The  spinal  canal  and  bilateral \nneuroforamina remained patent. \n \n2. Otherwise, negative non-contrast CT of the lumbar spine.  \n \n3. MRI would be more sensitive for further characterization of disc pathology as clinically \nindicated.  \n  \nSubsequent  records  mention  that  claimant  was  mildly  improved  with  physical  therapy  and \nmedication. On March 1, 2012, claimant was released to light duty only. This was increased to light-\nmoderate duty on April 3, 2012, and then to “full duty as she feels comfortable doing so. She was last \nseen for this injury on July 2, 2012, when she reported that she continued to hurt herself at work and \ndid  not think  she  could  keep  doing  her  job. She  was  not  restricted  in  her  duties  at  that  time. The \nrecords in 2012 conclude with a referral to pain management regarding claimant’s chronic back and \nleft shoulder pain. There were no records submitted regarding the treatment by the pain management \nphysician or any other treatment for her back from 2012 through March 2021. \n Claimant was seen by Dr. Ian Cheyne on April 7, 2021. She described how she was injured \nwhile assisting a patient out of a wheelchair and fell on her lower back and left hip on March 26, 2021. \nDr. Cheyne diagnosed her with a muscle strain of her facia and tendon of lower back and radiculopathy \nin her lumbar region. The plan of care was reported to do physical therapy three times a week for two \nweeks and an MRI was scheduled. Claimant was placed on restricted duty, with a lifting limitation of \ntwenty  pounds or  less,  repetitive  lifting  of  ten  pounds  or  less, with limited  bending,  stooping,  and \ntwisting. She was to alternate sitting and standing and walking as tolerated.  \n Claimant next saw Dr. Cheyne on April 29, 2021, where Dr. Cheyne reviewed the MRI results \nwith  her. Claimant  reported  that  she  had  some  improvement  with  physical  therapy. The  diagnosis \nremained the same and the plan of care was for more physical therapy and an MRI on her left hip. \nClaimant was also referred to pain management for  a lumbar epidural steroid injection (LESI). Her \n\nMiller-H300389 \n7 \n \n \nrestrictions remained the same. \n Except  for  x-rays  of  her  spine  at  Northeastern  Health  Systems  in  Sallisaw,  Oklahoma  on \nNovember 3, 2021, there is a gap in the records from April 29, 2021, until March 30, 2022, that was \nnot fully explained through the testimony. However, I note that Dr. Tomecek was the physician that \nordered the x-rays and from the testimony, claimant was referred to Dr. Tomecek by respondents. \nThe x-ray findings were “sacralization of the L5 vertebrae. No fracture of spondylolisthesis including \non flexion extension lateral views. The lumbar vertebral body height and disc spaces are normal. No \nabnormal curvatures.”  The impression was that claimant had “no acute disease process.” \n The  next  notes  provided  were  from  Baptist  Health  Pain  Management  Clinic  on  March  30, \n2022. The history provided at that visit revealed that claimant had undergone an LESI and a left SI \njoint injection with some relief.\n2\n  She also had a TENS unit which she reported was also of some help. \nIn his assessment, Dr. David Florencio Fran found the following: \n1. 51-year-old female with a history of chronic low back pain, lumbar spondylosis, \nlumber facet mediated pain, left sacroiliac joint dysfunction, left SI joint pain, left \ntrochanteric bursitis who failed conservative treatment measures in the past. We \nwill  schedule  a  bilateral  medial  branch block of  the  L3,  L4,  L5,  S1  for  possible \nradial frequency ablation for long term relief. \n \n2. Tramadol 50 mg 1p.o. four times daily as needed for pain. \n3. Follow up in the main clinic one week post injection for reevaluation and further \nrecommendations. \n \n4. Consider a repeat left sacroiliac joint injection in the future. \nDr. Fran noted that the lumbar spine study of April 16, 2021, showed: \n1. Grade one retrolisthesis of the L4-5.  \n \n2. Posterior  disc  protrusions  at  L1-L2,  L2-L3,  L3-L4,  L4-L5,  without  significant  canal \nnarrowing.  \n \n2\n There was no record documenting which level of claimant’s spine received the referenced LESI, or when it was \nperformed.  \n\nMiller-H300389 \n8 \n \n \n3. Mild right foraminal narrowing at L2-L3 mild left foraminal narrowing at L3-L4.\n3\n  \nOn April 12, 2022, claimant had the aforementioned injection at the L3, L4, L5, and S1. She \nreturned to see Dr. Fran on May 13, 2022, and reported that she failed to get any significant relief \nfrom the injections. On June 7, 2022, claimant had a L3-4 transforaminal epidural steroid injection \n(TFESI); on July 15, 2022, she reported that her low back had improved but she continued to have a \nburning sensation in her left buttocks down the lateral aspect of her left ankle. \n Claimant saw Dr. Tomecek on August 4, 2022, and when she declined surgical intervention, \nDr. Tomecek did not have anything else he could provide for her. She was released from medical care \nwith  permanent  restrictions  of  no  lifting  over  twenty-five  pounds  and  no  repetitive  bending. She \nshould be able to alternate sitting and standing while working. \n Claimant  was  then  referred  by respondents to  Functional  Testing  Centers  for  a  Functional \nCapacity Evaluation (FCE) on August 24, 2022. Claimant put forth a reliable effort, demonstrating an \noccasional bimanual lift or carry up to forty pounds, with the ability to perform lifting or carrying of \nup to twenty pounds on a frequent basis. Claimant also demonstrated an occasional right extremity \nlift of twenty pounds as well as a left extremity lift of up to twenty pounds of lifting unilaterality from \nthe floor to shoulder level. The examiner noted muscle spasms on the right side of claimant’s lumbar \nregion. \n There were no records submitted between the FCE and a nerve conduction test conducted \non May 22, 2024. The referring provider for that test was Dr. Margaret Cox, and the complaint was \n“numbness and tingling in the upper and lower extremities of both sides.”  The impressions were \n“normal  nerve  conductions  studies  of  all  four extremities. There  is  no  evidence  of  peripheral \n \n3\n Dr. Cheyne’s records of April 29, 2021, stated that claimant was in the office to see him for MRI results, but there \nwas no mention in his record of what was related to claimant in that visit. However, I see no reason to believe claimant \nhad more than one MRI in April 2021. \n\nMiller-H300389 \n9 \n \n \nneuropathy in the study.” \n Following the nerve conduction study, claimant returned to see Dr. Tomecek on September \n5, 2024. Dr. Tomecek recited the history of her previous treatment and noted that claimant is using a \nTENS unit and has seen a chiropractor to help her deal with her pain. Dr. Tomecek ordered an MRI \nof the lumbar spine, which was performed on October 16, 2024. For reasons that were not explained, \nthe admissions and final diagnosis mentioned an unspecified injury of the right ankle. However, it is \napparent that there was an MRI of the lumbar spine performed with these findings: \n“There are four non-rib bearing lumbar vertebrae bodies. S1 is transitional in \nappearance. There are  no  fractures. The  conus  is  unremarkable.    Mid- \nposterior or lateral bulging disc at L2-L3, and L3-L4 and certainly centrally at \nL4-S1. No disc protrusion or significant canal or foraminal stenosis.” \n \nAfter the MRI, claimant returned to Dr. Tomecek on January 9, 2025. At that time, claimant \nwas working  on  pain  management with  Dr.  Strickland and  Dr.  Goodman  (from  whom  no  records \nwere submitted). Following his examination Dr. Tomecek recorded:  \n“This is a pleasant 54-year-old female who has had chronic low back pain, left \nparaspinal  pain,  left  buttock  pain,  and  hip  pain. She  is  not  interested  in  any \ntype of major surgical intervention. She has a degenerative disc at L4-L5 with \na facet arthropathy at L4-L5, causing mild to moderate foraminal stenosis. Her \nsymptoms  are  worse  on  the  left  consistent  with  left  L5  radiculopathy. I  am \nrecommending  a  left  L4-L5  transforaminal  epidural  steroid  injection  by  Dr. \nStrickland at the facility where she works.  \n \nI  feel  she  can  continue  to  work  light-duty  with  the  following  temporary \nrestrictions:  no lifting  over  forty  pounds,  no  pushing  or  pulling  over  sixty \npounds. I did not prescribe her any medications today. I would like to see her \nback in a month for routine follow-up. She is approaching maximum medical \nimprovement. I would expect to see her be at maximum medical improvement \nin one to two months.” \n   \n Although claimant did not see Dr. Tomecek on January 24, 2025, he had an addendum to his \nrecords at the request of respondents’ claim representative. The question posed to Dr. Tomecek was \nwhether the claimant’s need for medical treatment related to an injury that occurred in 2012 or was \n\nMiller-H300389 \n10 \n \n \nrelated to her most recent back injury. Dr. Tomecek stated that within a reasonable degree of medical \ncertainty, her current condition was related to her 2021 lifting injury.  \n Respondents submitted a Notice of Non-Certification prepared by Dr. Michael Levy. Dr. Levy \nwas provided only the October 15, 2024, radiology report, and the notes from Dr. Tomacek’s January \n9, 2025, examination of claimant. Dr. Levy issued a denial based in part on “there should be a failure \nof conservative treatments including NSAID and physical therapy for 4 weeks or more.” He applied \nthe Official Disability Guidelines to what little information he was provided and issued an unfavorable \ndecision to Dr. Tomacek’s recommended course of treatment.  \nADJUDICATION \n \n As set forth above, claimant withdrew her claim for a permanent impairment rating based on \nthe results of the double inclinometer test Dr. Tomacek relied upon in assessing a rating. The only \nissue  remaining  is whether  claimant  proved  she  is  entitled  to  additional  medical  benefits  as \nrecommended  by  Dr.  Tomacek. A  claimant  bears  the  burden  of  proving  entitlement  to  additional \nmedical treatment for a compensable injury. LVL, Inc. v. Ragsdale, 2011 Ark. App. 144, 381 S.W.3d \n869. Once it  has  been  established  that  a  claimant  has  sustained  a  compensable  injury, she  is  not \nrequired to offer objective medical evidence to prove entitlement to additional benefits, Ark. Health \nCtr. v. Burnett, 2018 Ark. App. 427, at 9, 558. S.W.3d 408, 414.  \n There  were  two conflicting  medical  opinions  as  to  whether  the  recommended  TFESI  is \nreasonable and necessary. I have assigned minimal evidentiary weight to the opinion of Dr. Levy, as \nhe lacked an adequate set of records on which to base an informed opinion. For instance, he did not \nknow the full extent of the treatment claimant has received to date including the failed conservative \ntreatment and  the persistent  pain claimant has  endured. On  the  other  hand, Dr. Tomacek is  the \nclaimant's  treating  physician, and  has  had  the  benefit  of  seeing  claimant  over  many  visits.   I  have \n\nMiller-H300389 \n11 \n \n \ntherefore assigned significant evidentiary weight to his opinion.  \n That  did  not  end  my  evaluation,  however,  as  claimant still  has  the  burden  of  proving  by  a \npreponderance of the evidence that medical treatment she seeks is reasonable and necessary. Goyne v. \nCrabtree  Contracting  Company,  2009  Ark.  App.  200,  301  S.W.  3d  16. She  has had mixed success  with \ninjections  in  her  back. In  the  notes  of his  first  visit  with  claimant  on March  30,  2023, Dr.  Fran \nmentioned an SI joint injection that provided some relief and that a LESI had been performed; those \nrecords were not provided. He later did a bilateral medial branch block that did not alleviate claimant’s \npain. Claimant had a left L3-4 TFESI on June 29, 2022, and reported improvement on her low back \nfollowing that procedure. Dr. Tomacek is recommending a TFESI at the L4-5 level, which has not \nbeen so treated. Given claimant’s positive outcome with the TFESI at L3-4, I find she has proven it \nis  both  reasonable  and  necessary  for this  procedure  to  be  performed  as  recommended  by  Dr. \nTomacek.  \nORDER \n \n Claimant has met her burden of proving by a preponderance of the evidence that she is entitled \nto additional medical treatment as recommended by Dr. Tomacek. \n After the hearing, claimant withdrew her claim for permanent impairment, and such was not \nconsidered in this decision. \n Pursuant to A.C.A. § 11-9-715(a)(1)(B)(ii), attorney fees are awarded \"only on the amount of \ncompensation for indemnity benefits controverted and awarded.\" Here, no indemnity benefits were \ncontroverted and awarded; therefore, no attorney fee has been awarded. Instead, claimant's attorney \nis free to voluntarily contract with the medical providers pursuant to A.C.A. § 11-9-715(a)(4). \n \n \n\nMiller-H300389 \n12 \n \n \n Respondent  is  responsible  for  paying  the  court  reporter's  charges  for  preparation  of  the \nhearing transcript in the amount of $403.45. \n IT IS SO ORDERED. \n \n \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H300389 TRACY MILLER, EMPLOYEE CLAIMANT BAPTIST HEALTH REGIONAL HOSPITALS, EMPLOYER RESPONDENT CLAIMS ADMMINISTRATIVE SERVICES RESPONDENT OPINION FILED APRIL 24, 2025 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, Ar...","fetched_at":"2026-05-19T22:42:03.672Z","links":{"html":"/opinions/alj-H300389-2025-04-24","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/MILLER_TRACY_H300389_20250424.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}