{"id":"alj-H302292-2024-08-21","awcc_number":"H302292","decision_date":"2024-08-21","opinion_type":"alj","claimant_name":"James Allmon","employer_name":"Primetals Tech. USA LLC","title":"ALLMON VS. PRIMETALS TECH. USA LLC AWCC# H302292 August 21, 2024","outcome":"granted","outcome_keywords":["granted:3"],"injury_keywords":["ankle","back","knee","hip","fracture","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Allmon_James_H302292_20240821.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"Allmon_James_H302292_20240821.pdf","text_length":40754,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nWCC NO. H302292 \n \n \nJAMES ALLMON, EMPLOYEE CLAIMANT \n \nPRIMETALS TECH. USA LLC, \n EMPLOYER RESPONDENT \n \nFARMINGTON CASUALTY CO., \n CARRIER RESPONDENT \n \n \nOPINION FILED AUGUST 21, 2024 \n \nHearing  before  Administrative  Law  Judge  O.  Milton  Fine  II  on June  21,  2024, in \nJonesboro, Craighead County, Arkansas. \n \nClaimant represented by Mr. George H. Bailey, Attorney at Law, Little Rock, Arkansas. \n \nRespondents  represented  by  Mr. Michael  E.  Ryburn,  Attorney  at  Law,  Little  Rock, \nArkansas. \n \n \nSTATEMENT OF THE CASE \n On June   21,   2024,   the   above-captioned   claim   was   heard   in Jonesboro, \nArkansas.    A  prehearing  conference  took  place  on April  15,  2024.   The Prehearing \nOrder  entered  on April  16,  2024, pursuant  to  the  conference  was  admitted  without \nobjection  as  Commission  Exhibit  1.    At  the  hearing,  the  parties  confirmed  that  the \nstipulations, issues, and respective contentions, as amended, were properly set forth in \nthe order. \nStipulations \n At  the  hearing,  the  parties  discussed  the  stipulations  set  forth  in  Commission \nExhibit  1.  With  the  addition  of  a  fourth  at  the  hearing, and the fifth via Respondents’ \n\nALLMON – H302292 \n \n2 \ncontentions and  proposed  stipulation  (see infra note 3),  they  are  the  following,  which  I \naccept: \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The  employee/employer/carrier  relationship  existed  on  March  24,  2023, \nwhich  Claimant  sustained  a  compensable  injury  to  his  right  ankle  by \nspecific incident. \n3. Respondents   accepted   the   above   injury   as   compensable   and   paid \nbenefits pursuant thereto. \n4. Claimant has been assigned an impairment rating of nine percent (9%) to \nthe  lower  extremity  in  connection  with  his  stipulated  compensable  injury; \nand Respondents are currently paying permanent partial disability benefits \npursuant to that rating. \n5. Claimant’s  average  weekly  wage  entitled  him  to  the  maximum \ncompensation rates of $835.00/$626.00. \nIssues \n At  the  hearing,  the parties  discussed the  issues  set forth  in  Commission  Exhibit \n1.  After amendments, the following were litigated: \n1. Whether Claimant sustained  an  injury  to  his  back as a compensable \nconsequence of his stipulated compensable right ankle injury. \n2. Whether Claimant is entitled to reasonable and necessary treatment of his \nalleged back injury. \n\nALLMON – H302292 \n \n3 \n3. Whether  Claimant  sustained  an  injury in  the  form  of  atrophy  of  his  right \nlower  extremity  above  the  knee  as a  compensable  consequence of  his \nstipulated compensable right ankle injury. \n4. Whether Claimant is entitled to an impairment rating of three percent (3%) \nto  his  right  lower  extremity,  and  permanent  partial  disability  benefits \npursuant   thereto,   in   connection   with   the   alleged   atrophying   of   that \nappendage. \n5. Whether Claimant is entitled to a controverted attorney’s fee not  only  on \nthe  permanent  partial  disability  benefits  sought  in  connection  with  the \nalleged  atrophying  of  his  right  lower  extremity,  but  on  the  as-yet  unpaid \nportion of the benefits tied to the nine percent (9%) impairment rating. \n All other issues have been reserved. \nContentions \n The respective contentions of the parties, following amendments at the hearing, \nread as follows: \n Claimant: \n1. Claimant  contends  that  he  sustained  a  compensable injury  on  or  about \nMarch  24,  2023,  during  the  course  of  and  within  the  scope  of  his \nemployment with Respondent Employer. \n2. Claimant  further  contends that  he  is  entitled to additional  reasonable  and \nnecessary   medical   treatment   and   unpaid   medically   related   travel \n\nALLMON – H302292 \n \n4 \nexpenses,  and  treatment  for  the  hip\n1\n and  back.    He  was  referred  to  Dr. \nAshley Park, who has ordered an MRI, with a diagnosis of radiculopathy.  \nThat has not been approved and appears to have been denied. \n3. Claimant  contends  that  he  is  entitled  to  additional  temporary  total  and \ntemporary partial disability benefits for a period yet to be determined.\n2\n \n4. Claimant  also  contends  that  he  is  entitled  to  permanent  partial  disability \nbenefits pursuant to impairment ratings of nine percent (9%) or greater to \nthe right foot and three percent (3%) to the right lower extremity above the \nknee.    The  latter  is  alleged  to  be  related  to  muscle  atrophy  that  he  has \nsuffered    as  a  compensable  consequence  of  his  stipulated  compensable \nright ankle injury. \n5. Statutory  attorney’s  fees  based  upon  all  controverted  amounts  are \nclaimed. \n Respondents: \n1. Respondents  will  assert  the  following  defenses:    (a)  they  have  stipulated \nto the maximum compensation rate\n3\n—there is no issue; (b) Claimant does \n \n \n1\nNo issue has been raised concerning this, so it will not be addressed.  Instead, it \nwill be considered reserved. \n \n \n2\nSee supra note 1. \n \n \n3\nReview of Respondents’ March 14, 2024, prehearing questionnaire response \nconfirms that they offered to stipulate that Claimant’s average weekly wage entitled him \nto the maximum compensation rates of $835.00/$626.00.  Based on this, I have found \nthat  the  parties  have  reached  a  stipulation  on  this  point.    It has  thus  been added  as \nStipulation No. 5.  See supra. \n\nALLMON – H302292 \n \n5 \nnot have a compensable back injury—this is a foot injury; (c) the injury is a \nscheduled  injury,  and  no  permanent  impairment  rating\n4\n has  been  issued \nyet; (d) there is no wage loss\n5\n with a scheduled injury; and (e) the antalgic \ngait\n6\n table is only used when the proper rating to the extremity cannot be \nascertained. \nFINDINGS OF FACT AND CONCLUSIONS OF LAW \n After  reviewing  the  record  as  a  whole,  including  medical  reports, non-medical \nrecords,  and  other  matters  properly  before  the  Commission,  and  having  had  an \nopportunity  to  hear  the  testimony  of Claimant and  to  observe his demeanor,  I  hereby \nmake the following findings of fact and conclusions of law in accordance with Ark. Code \nAnn. § 11-9-704 (Repl. 2012): \n1. The Arkansas Workers’ Compensation Commission has jurisdiction over \nthis claim. \n2. The stipulations set forth above are reasonable and are hereby accepted. \n3. Claimant   has   proven   by   a   preponderance   of   the   evidence   that   he \nsustained  an  injury  to  his  back  as  a  compensable  consequence  of  his \nstipulated compensable right ankle injury. \n \n \n \n4\nAs shown by Stipulation No. 3 supra and the evidence (infra), both the stipulated \ncompensable right ankle injury and the atrophying of Claimant’s right thigh have been \nrated. \n \n \n5\nThis issue has been reserved. \n \n \n6\nThis is not at issue in this proceeding. \n\nALLMON – H302292 \n \n6 \n4. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  reasonable  and  necessary  treatment  of  his  compensable  back \ninjury. \n5. Claimant   has   proven   by   a   preponderance   of   the   evidence   that   he \nsustained  an  injury  in  the  form  of  atrophying  of  his  right  thigh  as  a \ncompensable  consequence  of  his  stipulated  compensable  right  ankle \ninjury. \n6. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  an  impairment  rating  of  three  percent  (3%)  to  his  right  lower \nextremity,  and  permanent  partial  disability  benefits pursuant  thereto,  in \nconnection with the compensable atrophying of his right thigh. \n7. Claimant  has  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled to a controverted attorney’s fee in connection with the indemnity \nbenefits awarded in Finding of Fact/Conclusion of Law No. 6. \n8. Claimant  has  not  proven  by  a  preponderance  of  the  evidence  that  he  is \nentitled  to  a  controverted  attorney’s  fee  in  connection  with  the  as-yet \nunpaid  portion  of  the  permanent  partial  disability  benefits  tied  to  the  nine \npercent  (9%)  impairment  rating  that  the  parties  have  stipulated  was \naccepted and is being paid out. \nCASE IN CHIEF \nSummary of Evidence \n Claimant was the sole witness at the hearing. \n\nALLMON – H302292 \n \n7 \n In  addition  to  the Prehearing Order  discussed  above,  exhibits  admitted  into \nevidence in this case were Claimant’s Exhibit 1,  a  compilation  of  his medical  records, \nconsisting  of a  cover  sheet, an index  page,  and 49 numbered  pages  thereafter; \nClaimant’s Exhibit 2, non-medical  records,  consisting of a  cover  sheet,  an  index  page, \nand five numbered pages thereafter; and Respondents’ Exhibit 1, an indemnity payout \nhistory on this claim, consisting of six pages. \nAnalysis of Issues \nA. Compensable Consequence-Back \n Introduction.  As the parties have stipulated, Claimant sustained a compensable \ninjury  to  his right ankle  injury on  March  24,  2023, while  working  for  Respondent \nPrimetals Technologies USA LLC (“Primetals”).  In this action, he is seeking, inter alia, \ntreatment  of a  back injury that  he  claims  is  a  compensable  consequence  of  his  ankle \ninjury. \n Standards.  If an injury is compensable, every natural consequence of that injury \nis  likewise  compensable.   Air  Compressor  Equip.  Co.  v.  Sword,  69  Ark.  App.  162,  11 \nS.W.3d 1  (2000); Hubley v. Best West. Governor’s Inn,  52  Ark. App. 226,  916  S.W.2d \n143  (1996).    The  test  is  whether  a  causal  connection  between  the  two  (2)  episodes \nexists.  Sword, supra; Jeter v. McGinty Mech., 62 Ark. App. 53, 968 S.W.2d 645 (1998).  \nThe existence of a causal connection is a question of fact for the Commission.  Koster \nv. Custom Pak & Trissel, 2009 Ark. App. 780, 2009 Ark. App. LEXIS 947.  It is generally \na  matter  of  inference,  and  possibilities  may  play  a  proper  and  important  role  in \nestablishing  that  relationship.   Osmose  Wood  Preserving  v.  Jones,  40  Ark.  App.  190, \n\nALLMON – H302292 \n \n8 \n843  S.W.2d  875  (1992).    A  finding  of  causation  need  not  be  expressed  in  terms  of  a \nreasonable   medical   certainty   where   supplemental   evidence   supports   the   causal \nconnection.  Koster, supra; Heptinstall v. Asplundh Tree Expert Co., 84 Ark. App. 215, \n137 S.W.3d 421 (2003). \n Under Ark. Code Ann. § 11-9-705(a)(3) (Repl. 2012), Claimant has the burden of \nproving by  a preponderance  of  the  evidence that  she  sustained a  compensable  injury.  \nThis standard means the evidence having greater weight or convincing force.  Barre v. \nHoffman,  2009  Ark.  373,  326  S.W.3d  415; Smith  v.  Magnet  Cove  Barium  Corp.,  212 \nArk. 491, 206 S.W.2d 442 (1947). \n A claimant’s testimony is never considered uncontroverted.  Nix v. Wilson World \nHotel,  46  Ark.  App.  303,  879 S.W.2d  457 (1994).    The determination  of a  witness’ \ncredibility and how much weight to accord to that person’s testimony are solely up to the \nCommission.  White v. Gregg Agricultural Ent., 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \nThe  Commission  must  sort  through  conflicting  evidence  and  determine  the  true  facts.  \nId.  In so doing, the Commission is not required to believe the testimony of the claimant \nor  any  other  witness,  but  may  accept  and  translate  into  findings  of  fact  only  those \nportions of the testimony that it deems worthy of belief.  Id. \n Evidence.   Claimant,  who  is  56  years  old, testified  that  he  worked  for  Primetals \nfor 21 years.  Prior to March 24, 2023, his physical condition was “healthy.”  But on that \ndate, the following occurred: \nI’d just got through filling up the machine with coolant, turned the water \nhose straight up, and I was going to clean—pick the water hose up.  I went \nto go retrieve my glove so I wouldn’t get metal shavings into my hands, \nand  as  I  was  walking  around  to  get  those,  I  walked  by  a  pallet  that  has \n\nALLMON – H302292 \n \n9 \ncellophane that had been left out, grabbed my boot as I’m walking past it, \nand basically tripped me.  And as I’m trying to keep my balance from \nfalling,  I  broke  my  foot\n7\n and  then  just  more  and  more  impact  on  it \ndamaged it in several—broken several bones before I hit the ground. \n \nHe  was  taken  by  ambulance  to  a  hospital  in  Blytheville.    There,  emergency  room \npersonnel tried unsuccessfully to re-set his fractured ankle.  After Claimant’s right lower \nextremity  was  placed  in  a  temporary  cast,  he  was  transferred  to  Region  One  Medical \nCenter in Memphis that same day. \n Following  three  more  abortive  attempts  to  re-set  his  ankle,  Claimant  had  an \northopedic consultation with Dr. Christopher Cosgrove.  Claimant was discharged from \nthe hospital on March 27, 2023, to await surgery.  The operation took place on April 7, \n2023.    This  involved  placement  of  multiple  pieces  of  metal  hardware  to  repair  his \nfractures.  Claimant  saw  Cosgrove  again  on  April  26,  2023,  and  was  sent  to  physical \ntherapy.  The cast was removed, and he was placed in a boot.  Returning again to Dr. \nCosgrove  on  July  10,  2023,  Claimant  was  directed  to  undergo  additional  therapy.   He \nrelated that during this period, he had “been laid up . . . so there was a lot of issues [he] \nhad  about  just  getting  up  and  down  and—and  being  able  to  move.”    Claimant \nelaborated:    “[b]asically three  months  laying  in  a  recliner  with  my  leg  elevated  to \nmaintain [sic] the swelling and keep an ice pack on it, and, you know, and just not even \ngetting out to—to use the bathroom yet.” \n At the time of the July 2023 visit to Dr. Cosgrove, Claimant requested that he be \nreleased to light duty.  This was granted.  Claimant saw the doctor again on September \n \n \n7\nThe  only  compensable  injury  to  which  the  parties  have  stipulated  involves \nClaimant’s right ankle.  See supra. \n\nALLMON – H302292 \n \n10 \n13, 2023.  On that occasion, Cosgrove examined Claimant’s back.  Claimant explained \nfurther:  “He—we talked about it, the issue of it, ‘cause I was trying to stay off of that leg \nand I’m walking around and all that stuff, it’s—I’m favoring one side all the time and it’s \nstarting to bother me in my back and hip and stuff.”  The following exchange took place: \nQ. When did your back start bothering you? \n \nA. Shortly after I got to work and to constantly favoring that one leg all \nthe time and then being there and then—and then I noticed it.  But \nlast time I went to the—Dr. Cosgrove, I just told him, I said, “Look, \nmy back is killing me.”  I said, “I”—I said, “I’m favoring this leg all \nthe time,” I said, “and I’m trying to stay off this other one it’s just—\nit’s killing my back, my hip.  I’m just’’—I said, “I’m not trying to—”  I \nthink he thought I was trying to ask for some pain pills, and I didn’t \nwant any pain pills.  I just wanted to have—make sure that I’m not \nhurting  myself  doing—favoring  this  one  leg  all  the  time,  that  it’s \nbecoming an issue for me.” \n \nAfter this appointment, Dr. Cosgrove sent Claimant to Dr. Park for the back issue.  He \nsaw  him on  October  24,  2023.    As  a  result  of  that  visit, where  Claimant  underwent  x-\nrays  of  his  back, it  was  recommended  that  he  have physical  therapy.    Park  also \nrecommended  that  he have  an  MRI  of  his  back;  but neither this nor  the  therapy has \ntaken  place,  despite  his  desire  to  have  them.    Claimant  returned  to  him on  March  4, \n2024.      Respondents   have   not   covered   this   visit;   and   the   bill   therefor   remains \noutstanding.  He takes no medication for his back condition. \n In his testimony, Claimant related that his ankle injury has impacted the way he \nwalks and works: \nIt  affects  almost  everything  that  I  do  now  because, where  they  used  to \ndidn’t  have no  problem trying to  move  around,  now  I’m—as  simple  as \ngetting  off  the  forklift  and  on  the  forklift,  I—I  used  to  could  just  jump  up \nthere.  Now I have to go to one particular side and I grab the cage and pull \nmyself up.  Getting into other areas where there’s steps and stuff, I have \n\nALLMON – H302292 \n \n11 \nto watch the way I walk up and down.  And then anything that I’m looking \nfor something down low, I have to try to find a way to squat down to keep \nmy left stiff to where—I just don’t have the ability to bend it and get down \nlike I used to. \n \nDescribing how he ascends and descends stairs, Claimant testified:  “I favor one leg, \nmy left leg, and use it to pick me up and take me down.”  He now limps; and while his \nback pain is not as severe as it was after its onset, “it’s still there.  It’s not going away.”  \nMotor  vehicle  trips  that  last  more  than  one  hour  bother  his  back.    When  asked  during \nthe hearing to indicate the source of his discomfort, he pointed to his lower back, near \nhis belt line. \n Under questioning from the Commission, Claimant related the following: \nQ. When did your back start bothering you? \n \nA. First—the first it started really bothering me, when I was laying that \ndadgum  recliner  being  laid  up  all  the  time  for  them  three  months, \nand  then  when  I  got  to  the  work,  it  seemed  to—it  helped  to  move \naround. \n \nQ. Uh-huh. \n \nA. But  then as  the  day  went  longer  and  my  leg  bothered  me  more,  it \nwas almost like I’m putting myself back in a recliner because I’m \ntrying  to  stay  off  that  leg  all  the  time,  so  then  it  just  kind  of \naggravated my back again. \n \nQ. So—go ahead. \n \nA. If—I’m kind of explaining.  If somebody told you to stay on one leg \nfor hours at a time and—and try to stay off that, which is what I’ve \nhad to do for light work, they told me to stay off that at work, and it \njust—it  was  like  I’m  shifting  one  problem  somewhere  else,  you \nknow.    You’re  trying  to  fix  one  issue  by—and  you’re  causing \nanother is what I feel like I was doing, and that’s what I told Dr. \nCosgrove, so that’s why he set me up a[n] appointment with Dr. \nParker. \n \n\nALLMON – H302292 \n \n12 \nQ. So  you  believe  that  favoring  your  left  leg,  your  uninjured  leg,  over \nyour  right  one  is  what’s  messed  your  back  up,  if  that  what  I’m \nhearing from you? \n \nA. I believe that’s what is causing the issue, yeah. \n \nQ. Did you do anything else during this time period that would explain \nwhy your back would be bothering you? \n \nA. No. \n \nQ. Did it get worse when you went back to work?  You talked about it \nbegan when you were in the recliner while you were convalescing? \n \n. . . \n \nA. Yes, sir. \n \nQ. Did it get worse when you went back to Primetals? \n \nA. It—it’s—when  I  first  got  out  of  the  recliner,  it  was  so—and you’ve \nbeen laid up for three months, it’s sore.  And it seems when I got \nback  to  work,  the  moving  around  helped  me,  but  then  as  I  had  to \nkeep  favoring  that  one  leg  because  of  the  restrictions  and  all  that \nand  because  of  what  it—it  is,  it  started  getting  back  worse  again.  \nYou know what I’m saying? \n \nLater  in  his  testimony,  Claimant  elaborated  that  whatever  back  issues  he  had  from \nextended time spent in his recliner resolved after he had been back at work for a while.  \nBut after resuming his duties at Primetals for a week or two and having to compensate \nfor his right leg by altering his gait, he began having back trouble again.  After dealing \nwith the symptoms for a couple of weeks, when his second visit with Dr. Cosgrove came \naround, he sought help from him, informing him that his back was “killing” him. \n The medical records in evidence reflect that Claimant suffered a right trimalleolar \nfracture/dislocation, and on April 7, 2023, had to undergo an open reduction and internal \nfixation  of  the  medial,  latera,  and  posterior  lip  because  of  the  displaced  and  unstable \n\nALLMON – H302292 \n \n13 \nnature of the fracture.  On July 10, 2023, Dr. Cosgrove released him to light duty, with a \n10-pound  lifting  restriction  and  no  standing/walking  for  more  than  one  hour  without  a \nrest period. \n When  Claimant  saw  Cosgrove  again  on  September  13,  2023,  he  related  the \nfollowing: \nWork is going well per his account.  He does describe having some lower \nback pain than has been progressive in nature as after he has returned to \nwork and feels like this is a compensation injury from unbalanced walking \ndue to his right lower extremity deficits. \n \nThe doctor in the report of the visit noted that Claimant “ambulates with a shortened and \nmildly antalgic gait pattern” and wrote: \nWith  regards  to  the  low  back  pain,  I  do  believe  that  this  is  likely  a \ncompensatory  injury  as  a  result  of  prolonged  unbalanced  walking \ndue  to  his  ankle  rehabilitation.  I  [would]  like  for  him  to  see  one  of  our \nnonoperative  spine  providers  for  an  assessment  and  optimization  of \nmanagement   of   this.  In   the   meantime,   he   is   at   maximal   medical \nimprovement for his right lower leg injury. \n \n(Emphasis added) \n Claimant  saw  Dr.  Park  on  October  24,  2023.    The  report  of  that  visit  reads  in \npertinent part: \nHISTORY OF PRESENT ILLNESS \nMr. Allmon is a 55-year old male who apparently suffered a work injury to \nhis  right  foot  in  late  March  2023.    He  states  that  because  of  his  foot \nfracture on his right foot, it altered his gait pattern.  In June of this year, he \nstarted  having  discomfort  in  his  back.    He  is  not  reporting  any  referred \npain  into  the  lower  extremities.    He  notices  discomfort  particularly  if  he \nassumes a sitting or standing position for any length of time.  On a visual \nanalog scale, he rated his discomfort between a 2 and 4 out of a possible \n10 score. \n \n. . . \n \n\nALLMON – H302292 \n \n14 \nPHYSICAL EXAMINATION \n \n. . . \n \nExamination of the lower extremities revealed motor strength to be good.  \nSensation   was   intact   to   light   touch.      Deep   tendon   reflexes   were \nsymmetrical.  There was no evidence of clonus.  There were negative root \ntension  signs  of  both  lower  extremities.    Range  of  motion  of  the  lumbar \nspine was normal.  There was some discomfort with lumbar extension and \nhyperextension.  There was no appreciable pain with side bending motion.  \nHe ambulated without antalgia. \n \nRADIOGRAPHIC EVALUATION/INTERPRETATION \nAP,  lateral,  oblique  and  spot  films  of  the  lumbar  spine  were  obtained \ntoday.    The  lumbar  vertebrae  were  of  normal  height  and  alignment  other \nthan  for  some  slight  levocurvature.    Intervertebral  disc  heights  were \nmaintained.  The foramen were patent.  The lumbar facets were normal. \n \nMUSCULOSKELETAL IMPRESSION \nOnset of low back pain after suffering a right foot fracture in the workplace \non 03/24/2023.  It is my impression that Mr. Allmon’s low back condition is \na result of pain emanating from posterior elements. \n \n When Claimant went back to Dr. Park on March 4, 2024, he was still presenting \nwith  lower  back  pain.    The  doctor  recommended  a  lumbar  MRI  and  a  possible  spinal \ninjection based on the MRI findings. \n Discussion.   Claimant,  whose  testimony  I  credit,  suffered  a  severe  right  ankle \ninjury  that  necessitated  surgery  and  a  lengthy  convalescence  in  a  recliner.    Once \nClaimant returned to work at light duty, he began favoring his “good leg”—the left one.  \nAs  a  result  of  his  altered  gait,  his  back  began  bothering  him.    He  first  sought \napproached  his  surgeon,  Dr.  Cosgrove,  about  his  back  problem.    The  doctor  in  his \nreport gave his opinion regarding causation:  “With  regards  to  the  low  back  pain,  I  do \nbelieve  that  this  is  likely  a  compensatory  injury  as  a  result  of  prolonged  unbalanced \nwalking  due  to  his  ankle  rehabilitation.”  I  credit  this  opinion.    Medical  evidence  is  not \n\nALLMON – H302292 \n \n15 \nordinarily  required  to  prove  causation.   Wal-Mart  v.  Van  Wagner,  337  Ark.  443,  990 \nS.W.2d 522 (1999).  But if a medical opinion is offered on causation, the opinion must \nbe  stated  within  a  reasonable  degree  of  medical  certainty.    Ark.  Code  Ann.  §  11-9-\n102(16)(B)  (Repl. 2012).   It  should  also  be noted that  in  interpreting this provision,  the \nArkansas  Supreme  Court  in Freeman  v.  Con-Agra  Frozen  Foods,  344  Ark.  296,  40 \nS.W.3d 760 (2001) stated:  “This court has never required . . . that the magic words \n‘within  a  reasonable  degree  of  medical  certainty’  even  be  used  by  the  doctor.”  \nHowever, where the only evidence of a causal connection is a speculative and indefinite \nmedical  opinion,  it  is  insufficient  to  meet  the  claimant's  burden  of  proving  causation.  \nCrudup  v.  Regal  Ware,  Inc.,  341,  Ark.  804,  20  S.W.3d  900  (2000); KII  Construction \nCompany v. Crabtree, 78 Ark. App. 222, 79 S.W.3d 414 (2002).  Here, use of the term \n“likely” by Dr. Cosgrove complies with the statute. \n The preponderance of the credible evidence, highlighted above, establishes that \nClaimant’s back injury was a natural consequence of his stipulated compensable right \nankle   injury.      The   causal   connection   between   the   two   has   been   established.  \nAccordingly,  he  had  met  his  burden  of  proving  that  his  back  injury  is  a  compensable \nconsequence. \nB. Reasonable and Necessary Treatment-Back \n Introduction.    Claimant  has alleged  that  he  is  entitled  to  reasonable  and \nnecessary treatment of his back injury. \n Standards.   Arkansas  Code  Annotated  Section  11-9-508(a)  (Repl.  2012)  states \nthat an employer shall provide for an injured employee such medical treatment as may \n\nALLMON – H302292 \n \n16 \nbe necessary in connection with the injury received by the employee.  Wal-Mart Stores, \nInc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  But employers are liable only \nfor  such  treatment  and  services  as  are  deemed  necessary  for  the  treatment  of  the \nclaimant’s injuries.  DeBoard v. Colson Co., 20 Ark. App. 166, 725 S.W.2d 857 (1987).  \nThe claimant must prove by a preponderance of the evidence that medical treatment is \nreasonable  and  necessary  for  the  treatment  of  a  compensable  injury.   Brown, supra; \nGeo  Specialty  Chem.  v.  Clingan,  69  Ark.  App.  369,  13  S.W.3d  218  (2000).    What \nconstitutes  reasonable  and  necessary  medical  treatment  is  a  question  of  fact  for  the \nCommission.  White Consolidated Indus. v. Galloway, 74 Ark. App. 13, 45 S.W.3d 396 \n(2001); Wackenhut Corp. v. Jones, 73 Ark. App. 158, 40 S.W.3d 333 (2001). \n As  the  Arkansas  Court  of  Appeals  has  held,  a  claimant  may  be  entitled  to \nadditional treatment even after the healing period has ended, if said treatment is geared \ntoward management of  the  injury.  See Patchell  v.  Wal-Mart  Stores,  Inc., 86  Ark.  App. \n230,  184  S.W.3d  31  (2004); Artex  Hydrophonics,  Inc.  v.  Pippin,  8  Ark.  App.  200,  649 \nS.W.2d 845 (1983).  Such services can include those for the purpose of diagnosing the \nnature and extent of the compensable injury; reducing or alleviating symptoms resulting \nfrom  the  compensable  injury;  maintaining  the  level  of  healing  achieved;  or  preventing \nfurther  deterioration  of  the  damage  produced  by  the  compensable  injury.   Jordan  v. \nTyson Foods, Inc., 51 Ark. App. 100, 911 S.W.2d 593 (1995); Artex, supra. \n Discussion.  I find that Claimant has proven by a preponderance of the evidence \nthat  he  is  entitled  to  reasonable  and  necessary  medical  treatment  of  his  compensable \nback  injury,  to  include  the  MRI and  physical  therapy that  have  been recommended \n\nALLMON – H302292 \n \n17 \nsupra.    Moreover,  I  have  reviewed  his  treatment  records  of  his  back  that  are  in \nevidence, and I find that he has proven by a preponderance of the evidence that all of it \nreflected therein was reasonable and necessary. \nC. Compensable Consequence-Atrophy \n Introduction.  In addition to his alleged back condition, Claimant has asserted that \nhe  also  suffered  a  compensable  consequence  in  the  form  of atrophying  of  his  right \nlower extremity above the knee. \n Evidence.  Per Claimant, his right lower extremity was “good, good to go” before \nhe suffered his stipulated compensable right ankle injury.  After the cast was removed in \nthe  weeks  after  his  surgical  procedure,  however,  he  was  shocked  to  see  the  withered \ncondition of his right lower extremity.  He described its appearance as being “kind of like \n[his] arm” instead of his leg.  Its  shrunken  appearance was  due  to  its  disuse.    For \nexample, Claimant’s testimony concerning his physical difficulties in performing his  job \nduties since going back to work included this passage: \nWhen you’re climbing up on a forklift, it’s pretty high so you have to use a \nlot  of  leg  muscles,  but  one  side  of  the  forklift  to  the  other,  depending  on \nwhat leg it is, there’s—you’ll have to use that leg muscle and I don’t have \nthat leg muscle in it when I get on that side because of the way it’s injured.  \nSo   what   I   do   is   have   to   use   my   body   weight—body   muscles   to \ncompensate for my leg. \n \nLater in his testimony, the following exchange took place: \nQ. Now, the problems you’re having doing your daily routine, chores or \nat work, is there more than your ankle affected?  Could you tell us \nhow  the  other  part  of  your  leg  affects  these  things  that  you’ve \ndescribed? \n \nA. Just no strength in my leg.  Just I don’t have— \n \n\nALLMON – H302292 \n \n18 \nQ. Is that your leg above and below the knee? \n \nA. My—my thigh here.  I don’t have any—how to explain it.  If you take \na step up on a step, you use your thigh to push yourself down, pick \nyourself up, and if I put my bad leg on a step and it’s like—there’s \nnothing  there,  so  I  pull  it  back  down  and  put  my  left  foot  back  up \nthere  and  then  pull my  right  leg up.    That’s  the  only  way  I  can \nexplain.   And that’s some of the issues also with the forklift and \ngetting  down  into  the  pits  where  the  machines  are  at  is  I  end  up \nalways  favoring  the  one  leg  because  the  other  leg’s—it  lets  me \ndown.  It won’t do what I need it to do. \n \nQ. Is your—is your thigh smaller than it was before? \n \nA. Yeah.  In my mind, it’s—you know, it— \n \nQ. Besides weak, it’s just diminished in size, is that correct? \n \nA. Yeah. \n \n Claimant’s testimony was that the difference in circumference between his right \nand  left  thighs  is  noticeable  to  both  him  and  his  spouse.    The  following  exchange \noccurred: \nQ. Any indication that your right thigh is not going to increase now that \nyou’re up and about?  How do you know it’s permanent? \n \nA. I don’t know if anything’s permanent.  That’s why I want to have—I \ndon’t know if anything is permanent, you know what I mean?  I \nneed to—that’s why I want to do something about it. \n \nHe was of the opinion that, based on his own observation, that the difference between \nhis two thighs is more than the one centimeter measurement reflected in his evaluation. \n The  medical  records  in  evidence  reflect  that  on  May  22,  2024,  Claimant \nunderwent  a  functional  capacity  evaluation  by  Casey  Garretson,  OTD,  OTR/L,  CFE, \nCEAS;  and  Charles  Davidson,  M.Ed.,  CEAS,  CFE,  CSDA,  of  Functional  Testing \nCenters, Inc.  That report reads in pertinent part: \n\nALLMON – H302292 \n \n19 \nIMPAIRMENT EVALUATION SUMMARY – Lower Extremity \n \n. . . \n \nPlease  review  the  following  Impairment  Evaluation.    The  evaluation  was \nconducted  based  on  The  AMA  Guides  to  the  Evaluation  of  Permanent \nImpairment, Fourth Edition (1992) using Objective findings. \n \n*Under  Arkansas workers[’]  compensation  law,  a  determination  of  the \nexistence and  extent  of  physical  impairment  must  be  supported  by \nobjective  and  measurable  findings.    Arkansas  code  also  prohibits  use  of \npain  or  complaint  of  pain  in  assessing  permanent  impairment.   Objective \nfindings  are  defined under  Arkansas  code  as  those  which  cannot  come \nunder  the  voluntary  control  of  the  patient,  and  specifically  exclude  pain, \nstraight-leg -raising  tests,  and  range-of-motion  tests.    In  other  words, \nalthough  pain,  active  range-of-motion,  and  straight-leg-raising  tests  are \ncriteria  used  in  the  Guidelines,  they  may  not  be  used  in  Arkansas  for \nassessment of impairment in Arkansas workers’ compensation cases. \n \nDetermination  of  impairment  was  based  on  objective  findings  (Objective \nfinding is defined as a finding that cannot come under the voluntary control \nof  the  patient)  for  potential  impairment  utilizing  Section  3.2:    The  Lower \nExtremity (p[p]. 75-91):  Anatomic, diagnostic, and functional methods are \nused  in  evaluating  permanent  impairments  of  the  lower  extremity.    While \nsome  impairments  may  be  evaluated  appropriately  by  determining  the \nrange of motion of the extremity, others are better evaluated by the use of \ndiagnostic categories or according to test criteria. \n \n. . . \n \n3.2c – Muscle Atrophy (Unilateral) using Table 37 (p.77):  Mr. Allmon did \nhave a documented girth deficit of the thigh as noted below. \n \nInstruction:    The  Thigh  circumference  is  measured  10  cm  above  the \npatella  with  the  knee  fully  extended  and  the  muscle  relaxed.    The  Calf \ncircumference  is  measured  at  the  maximum  circumference  region  and  is \ncompared  to  the  same level  on  the  contralateral  side.    The  [G]uides \nindicate  that  neither  limb  should  have  swelling  or  varicosities  that  would \ninvalidate the measurements.  If the unaffected limb has had prior injury or \nany  other  varicosity,  then  muscle  atrophy  would  not  be  accurate  for \npurposes of impairment. \n\nALLMON – H302292 \n \n20 \n \nMuscle Atrophy Deficit cm Whole Person % Lower Extremity % \nThigh 1 cm 1% 3% \nCalf 0 cm 0% 0% \n \n Discussion.  I credit Claimant’s testimony that disuse of his right lower extremity \nhas led to its being atrophied.  This is corroborated by Garretson and Davidson, whose \nmeasurements of Claimant’s thighs revealed that the right is 1 cm smaller than the left.  \nThis  is  an  injury  that  under Sword and Hubley, supra,  is  a  natural  consequence  of \nClaimant’s stipulated compensable right ankle injury.  The  causal  connection  between \nthe  right  ankle  injury  and the  atrophying  of  his  thigh has  been  established.   Therefore, \nhe has proven that the latter is a compensable consequence of the former. \nD. Impairment Rating-Thigh Atrophy \n Introduction.  Claimant has alleged that is entitled to the impairment rating that he \nhas been assigned in connection with the atrophying of his right thigh. \n Standards.      Permanent   impairment,   generally   a   medical   condition,   is   any \npermanent  functional  or  anatomical  loss  remaining  after  the  healing  period  has  been \nreached.  Ouachita Marine v. Morrison, 246 Ark. 882, 440 S.W.2d 216 (1969).  Pursuant \nto  Ark.  Code  Ann.  §  11-9-522(g)  (Repl.  2002),  the  Commission  adopted  the  AMA \nGuides as an impairment rating guide.  See AWCC R. 099.34.  A determination of the \nexistence  or  extent  of  physical  impairment  must  be  supported  by  objective  and \nmeasurable  physical  or  mental  findings.    Ark.  Code  Ann.  §  11-9-704(c)(1)(B)  (Repl. \n2012).    Permanent  benefits  are  to  be  awarded  only  following  a  determination  that  the \ncompensable  injury  is  the  major  cause  of  the  disability  or  impairment.   Id.  §  11-9-\n102(F)(ii).  “Major cause” is defined as “more than fifty percent (50%) of the cause,” and \n\nALLMON – H302292 \n \n21 \na finding of major cause must be established by a preponderance of the evidence.  Id. § \n11-9-102(14).    Any  medical  opinion  must  be  stated  within  a  reasonable  degree  of \nmedical certainty.  Id. § 11-9-102(16)(B). \n Discussion.  The Commission is authorized to accept or reject a medical opinion \nand  is  authorized  to  determine  its  medical  soundness  and  probative  value.   Poulan \nWeed Eater v. Marshall, 79 Ark. App. 129, 84 S.W.3d 878 (2002); Green Bay Packing v. \nBartlett, 67 Ark. App. 332, 999 S.W.2d 692 (1999).  After consideration of the evidence, \nI credit the report of Garretson and Davidson, quoted above.  Claimant has proven by a \npreponderance  of  the  evidence  that  he  is  entitled  to  an  impairment  rating  of  three \npercent  (3%)  to  his  right  lower  extremity,  and  permanent  partial  disability  benefits \npursuant thereto, in connection with the compensable atrophying of his right thigh.  In so \ndoing,  I  find  that  the  preponderance  of  the  evidence  establishes  that  his  compensable \nconsequence—in the form of the atrophying of his right thigh—is the major cause of his \nimpairment. \nE. Attorney’s Fee \n Introduction.  As part of this action, Claimant is seeking a controverted attorney’s \nfee  on  the  permanent  partial  disability  benefits  he  is  owed  that  are  related  to  the  two \nimpairment ratings he has been assigned in the course of this matter. \n Discussion.   One  of  the  purposes  of  the  attorney's  fee  statute  is  to  put  the \neconomic  burden  of  litigation  on  the  party  who  makes  litigation  necessary.   Brass  v. \nWeller,  23  Ark.  App.  193,  745  S.W.2d  647  (1998).    Since  Claimant  has  proven  herein \nhis entitlement to permanent partial disability benefits in accordance with the impairment \n\nALLMON – H302292 \n \n22 \nrating  that  was  assigned  for  the compensable atrophying  of  his right  thigh—three \npercent (3%) to the lower extremity—and because Respondents have controverted this, \nhe has shown that his attorney should be awarded a controverted fee at their expense \nunder  Ark.  Code  Ann.  §  11-9-715  (Repl.  2012)  on  those  indemnity  benefits  awarded \nherein. \n As for Claimant’s quest for a fee on the as-yet unpaid permanent partial disability \nbenefits related to the nine percent (9%) rating assigned for his stipulated compensable \nright  ankle  injury,  I  do  not  find  this  to  be  valid.    As  the  parties  have  stipulated, \nRespondents  accepted  this  rating  and  are  paying  it  out.   The  evidence  reflects  that \nClaimant  was  assigned  this  rating  by  Garretson and  Davidson on  May  22,  2024.  \nClaimant’s credible testimony  was  that  the  week  before  the  hearing,  he  received  a \ncheck  from  Respondents;  and  two  more  checks  arrived  a  day  or  two  thereafter.    The \npayout history shows that this first check, in the amount $1,746.54, was issued on June \n5, 2024—14 days after he was rated.  Two more—each in the amount of $626.00 (his \nstipulated  permanent  partial  disability  rate)  were  issued  seven  days  thereafter.    When \nClaimant  called  Respondents  about  this,  they  confirmed  that  these  monies  were \npayments  toward  his  nine  percent  (9%)  impairment  rating.    Yet  another check,  for  the \nsame  amount,  was  issued  the  following  week—just  two  days  before  the  hearing.  \nNeither the rating nor any portion of those related benefits have been controverted; they \nare  being  paid  in  due  course.    No  litigation  thereon  has  been  necessary  under Brass, \nsupra.  Accordingly, no attorney’s fee is owing in connection with this; Claimant has not \nestablished his entitlement thereto. \n\nALLMON – H302292 \n \n23 \nCONCLUSION AND AWARD \n Respondents are directed to pay/furnish benefits in accordance with the findings \nof fact set forth above.  All accrued sums shall be paid in a lump sum without discount, \nand this award shall earn interest at the legal rate until paid, pursuant to Ark. Code Ann. \n§ 11-9-809 (Repl. 2002).  See Couch v. First State Bank of Newport, 49 Ark. App. 102, \n898 S.W.2d 57 (1995). \n Claimant’s  attorney  is  entitled  to  a  25  percent  (25%)  attorney’s  fee  awarded \nherein,  one-half  of  which  is  to  be  paid  by  Claimant  and  one-half  to  be  paid  by \nRespondents in accordance with Ark. Code Ann. § 11-9-715 (Repl. 2012).  See Death & \nPermanent  Total  Disability  Trust  Fund  v.  Brewer,  76  Ark.  App.  348,  65  S.W.3d  463 \n(2012). \n IT IS SO ORDERED. \n       ________________________________ \n       Hon. O. Milton Fine II \n       Chief Administrative Law Judge","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION WCC NO. H302292 JAMES ALLMON, EMPLOYEE CLAIMANT PRIMETALS TECH. USA LLC, EMPLOYER RESPONDENT FARMINGTON CASUALTY CO., CARRIER RESPONDENT OPINION FILED AUGUST 21, 2024 Hearing before Administrative Law Judge O. Milton Fine II on June 21, 2024, in Jonesboro, Craighead ...","fetched_at":"2026-05-19T22:50:19.534Z","links":{"html":"/opinions/alj-H302292-2024-08-21","pdf":"https://labor.arkansas.gov/wp-content/uploads/Allmon_James_H302292_20240821.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}