{"id":"alj-H302993-2024-11-06","awcc_number":"H302993","decision_date":"2024-11-06","opinion_type":"alj","claimant_name":"Cory Sullivan","employer_name":"Actionpaq","title":"SULLIVAN VS. ACTIONPAQ AWCC# H302993 November 06, 2024","outcome":"granted","outcome_keywords":["granted:4","denied:1"],"injury_keywords":["back","cervical","lumbar","neck","thoracic"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/SULLIVAN_CORY_H302993_20241106.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"SULLIVAN_CORY_H302993_20241106.pdf","text_length":21286,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H302993 \n \nCORY SULLIVAN, Employee                                                                         CLAIMANT \n \nACTIONPAQ, Employer                                                                           RESPONDENT \n \nTRAVELERS INSURANCE COMPANY, Carrier                                      RESPONDENT                                                                                                   \n \n \n OPINION FILED NOVEMBER 6, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, \nWashington County, Arkansas. \n \nClaimant represented by LAURI THOMAS, Attorney, Springdale, Arkansas. \n \nRespondents represented by MICHAEL E. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On October 9, 2024, the above captioned claim came on for hearing at Springdale, \nArkansas.    A  pre-hearing  conference  was  conducted  on August  15,  2024 and  a  pre-\nhearing order was filed on August 19, 2024.  A copy of the pre-hearing order has been \nmarked as Commission’s Exhibit #1 and made a part of the record without objection. \n At the pre-hearing conference the parties agreed to the following stipulations: \n 1.   The Arkansas Workers’ Compensation Commission has jurisdiction of the \nwithin claim. \n 2.     The claimant sustained a compensable injury to his back on April 26, 2023. \n 3.     The claimant was earning sufficient wages to entitle him to compensation at \nthe weekly rates of $440.00 for total disability benefits and $330.00 for permanent partial \ndisability benefits. \n\nSullivan – H302993 \n 2 \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1. Compensability of injury to claimant’s cervical spine on April 26, 2023. \n2. Temporary total disability benefits from date last paid to a date yet to be  \ndetermined. \n3. Related medical. \n4. Attorney’s fee. \n The claimant’s contentions are set forth in his pre-hearing questionnaire which is \nattached to Commission Exhibit #1 as Exhibit #1. \n The respondents contend the claimant did not injure his cervical spine on April 26, \n2023.  He is not entitled to additional temporary total disability benefits.\n From a review of the record as a whole, to include medical reports, documents, \nand other matters properly before the Commission, and having had an opportunity to hear \nthe testimony of the witness and to observe his demeanor, the following findings of fact \nand conclusions of law are made in accordance 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 \non August 15, 2024 and contained in a pre-hearing order filed August 19, 2024 are hereby \naccepted as fact. \n 2. Claimant  has failed  to  prove  by  a  preponderance  of  the evidence  that  he \nsuffered a compensable injury to his cervical spine on April 26, 2023. \n 3. Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to temporary total disability benefits from April 27, 2023 through May \n\nSullivan – H302993 \n \n3 \n \n22,  2023,  as  a  result  of  his  compensable  low  back  injury.    Pursuant  to  A.C.A.  §11-9-\n110(d)(1)  up  to  25%  of  these  temporary  total  disability  benefits  are  to  be  withheld  for \nsatisfaction of claimant’s child support obligations. \n 4.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he is entitled to additional medical treatment recommended by Dr. Blankenship.  This \nincludes physical therapy and a referral to Dr. Cannon. \n 5.   Respondent has controverted claimant’s entitlement to all unpaid indemnity \nbenefits.  \n \n FACTUAL BACKGROUND \n The  claimant  has  a  history  of  physical  problems  involving  his  cervical  spine \nfollowing a motor vehicle accident in 2011.  After receiving some chiropractic treatment, \nclaimant came under the care of Dr. Tonymon who performed disc replacement surgery \non October 15, 2020, at the C5-6 and C6-7 levels.  According to claimant’s testimony he \nwas subsequently released by Dr. Tonymon and after some period of time was able to \nperform activities without limitation.   \n Claimant  began  working  for  respondent  in  March  2022.    On  April  26,  2023,  the \nclaimant  was  in  the  process  of  readjusting  a  shelf  in  order  to  fit  a  crate  on  it.    While \nperforming this readjustment a beam popped out and claimant testified “I fell straight \ndown  between  a  crate  and  the  side  of  the  rack.”    Claimant  testified  that  he  fell \napproximately 7 to 7 ½ feet and stated that he hit the back of his head on beams as he \nwas falling.   \n Claimant  testified  that  after  this  incident  he  had  pain  in  his  back  and  his  head.  \n\nSullivan – H302993 \n \n4 \n \nClaimant  was  taken  to  the  emergency  room  at  Mercy  on  April  26,  2023 where  he \nunderwent CT  scans  from  his  head  down  to  his  pelvis.    Claimant  was  diagnosed  as \nsuffering  from  fractures  of  the  L1  and  L2  transverse  processes.    Claimant  was  given \nmedication in the form of Hydrocodone and instructed to receive follow-up care with his \nneurosurgeon.   \n Although claimant was released to return to work he testified that he was unable \nto do so and he eventually returned to see Dr. Tonymon on May 22, 2023.  With respect \nto claimant’s lumbar fractures, Dr. Tonymon indicated that no treatment was necessary \nand claimant should return to his office as needed.  Dr. Tonymon also gave claimant an \noff-work slip from April 26, 2023 through May 22, 2023.   \n Thereafter, claimant returned to Dr. Tonymon on September 5, 2023, complaining \nof neck pain as well as low back pain.  Dr. Tonymon again indicated that no treatment \nwas necessary for claimant’s transverse processes fractures, but stated that if claimant’s \nlow back pain persisted he should undergo an MRI scan to assess for further etiology.  \nWith respect to claimant’s neck pain, Dr. Tonymon indicated he had personally reviewed \na  cervical x-ray dated May  22,  2023 and it was essentially unchanged from claimant’s \nprior x-rays in October 2022.   \n Thereafter,   claimant   filed   for   and   received   a   change   of   physician   to   Dr. \nBlankenship who evaluated claimant on April 1, 2024.  With respect to claimant’s cervical \nspine,  Dr.  Blankenship  ordered  an  x-ray  which  according  to  his  report  indicated  that \nclaimant’s implant at C5-6 had completely failed.  Dr. Blankenship ordered MRI scans of \nboth the claimant’s lumbar and  cervical  spines.    He  also  recommended  that  claimant \nundergo physical therapy for his lumbar spine. \n\nSullivan – H302993 \n \n5 \n \n An MRI scan of claimant’s lumbar spine dated May 31, 2024 revealed a small disc \nherniation at the L5-S1 level and multilevel facet arthropathy most significant at L3-4 and \nL4-5.    Following  this  MRI  scan, Dr.  Blankenship  in  a  report  dated  June  6,  2024 \nrecommended  that  claimant  see  Dr.  Cannon  for  a  possible  facet  injection.    He  also \nordered  physical  therapy.    The  medical  records  indicate  that  claimant  began  physical \ntherapy on June 25, 2024, and completed it on July 31, 2024.   \n The last medical report from Dr. Blankenship is dated September 23, 2024.  In that \nreport  he  notes that  claimant  did  receive  some  relief  from  the  physical  therapy  and \nrecommended that he receive additional physical therapy. \n Respondent accepted as compensable an injury to claimant’s lumbar spine and \nhas paid some compensation benefits.  Claimant has filed this claim contending that he \nsuffered  a  compensable  injury  to  his  cervical  spine  on  April  26,  2023.    He  also  seeks \npayment  of  temporary  total  disability  benefits,  payment  of  medical  benefits,  and  a \ncontroverted attorney fee. \n \nADJUDICATION \n Initially, claimant contends that in addition to his lumbar spine injury on April 26, \n2023, he also suffered a compensable injury to his cervical spine.  Claimant’s claim is for \na  specific  injury  identifiable  by  time  and  place  of  occurrence.    In order  to  prove  a \ncompensable injury as the result of a specific incident that is identifiable by time and place \nof occurrence, a claimant must establish by a preponderance of the evidence (1) an injury \narising out of and in the course of employment; (2) the injury caused internal or external \nharm to the body which required medical services or resulted in disability or death; (3) \n\nSullivan – H302993 \n \n6 \n \nmedical evidence supported by objective findings establishing an injury; and (4) the injury \nwas caused by a specific incident identifiable by time and place of occurrence.  Odd Jobs \nand More v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630. \n After reviewing the evidence in this case impartially, without giving the benefit of \nthe doubt to either party, I find that claimant has failed to prove by a preponderance of \nthe evidence that he suffered a compensable injury to his cervical spine on April 26, 2023. \n In support of his contention that he suffered a compensable injury, claimant relies \nsignificantly on the opinion of Dr. Blankenship.   As previously noted, claimant obtained a \nchange  of  physician  to  Dr.  Blankenship  and  was evaluated  by  him  on  April  1,  2024.  \nNotably,  this  was  almost  one  year  after  the  claimant’s  fall  on  April  26,  2023.    Dr. \nBlankenship performed x-rays in his office on that date and stated: \n \n  The patient has undergone artificial disc placement at \n  C5-6 and C6-7.  There is marked subsidence through \n  both implants.  The implant at C6-7 still appears to be \n  somewhat functional, although there appears to be an \n  autofusion posteriorly.  The implant at C5-6 has com- \n  pletely failed with the posterior portion driven up into \n  the vertebral body.   (Emphasis added.) \n \n \n Dr. Blankenship went on to state that claimant had undergone no structural studies \nof the cervical spine since his injury and as a result ordered an MRI scan.  In response to \nrespondent’s denial of the claimant’s cervical complaints, Dr. Blankenship authored  a \nletter dated May 16, 2024, indicating that although the claimant had a previous surgery, \nit was his opinion that claimant’s current complaints and need for treatment of his neck \nwas related to the injury at work due to a shelf hitting claimant on top of the head.  Dr. \nBlankenship reiterated this opinion in a subsequent report dated June 6, 2024.   \n\nSullivan – H302993 \n \n7 \n \n First, I note that Dr. Blankenship bases his opinion in part on the fact that it was \nhis belief that a shelf hit claimant on top of the head during the fall.  However, claimant \nacknowledged that he does not know if anything hit him in the head or not during his fall.  \nMore importantly, I note that when claimant sought medical treatment from the emergency \nroom on the day of the accident on April 26, 2023, he specifically denied any neck pain.  \nFurthermore, the physical exam portion of that report states the following: \n   \n  Cervical back:  Normal range of motion and neck \n  supple. \n  Comments:  Few scattered abrasions to the back. \n  Has lower lumbar tenderness.  No midline thoracic \n  or cervical tenderness.  (Emphasis added) \n \n \n In  addition,  despite  Dr.  Blankenship’s  belief  that  claimant  had  undergone  no \nstructural  studies  of  his  cervical  spine since  the  injury,  the  emergency  room  report \nindicates that claimant did in fact undergo a CT scan of multiple body parts from his head \nto his pelvis, including a CT scan of his cervical spine.  That CT scan was read as showing \nno cervical spine abnormality. \n  IMPRESSION:  No acute C-spine abnormality is \n  Identified. \n \n \n As  previously  noted, on  May  22,  2023 claimant sought  additional  medical \ntreatment  from  Dr.  Tonymon, the physician  who  had  previously  performed  surgery  on \nclaimant’s cervical spine.  Although  claimant  did  report  back  pain  to  Dr.  Tonymon, his \nreport indicates that claimant reported “no neck pain”.  Furthermore, Dr. Tonymon’s \nphysical examination report indicates that claimant had a normal range of motion of his \ncervical spine.  Also on that date, Dr. Tonymon did order an x-ray of claimant’s cervical \n\nSullivan – H302993 \n \n8 \n \nspine with the following findings: \n  Disc prostheses are present at C5-6 and C6-7.  The \n  cervical vertebral bodies are normally aligned.  No \n  subluxation is present with flexion/extension, no \n  fractures are identified.  (Emphasis added.) \n \n \n It  was  not  until  claimant  returned  to  Dr.  Tonymon  on  September  5,  2023,  more \nthan four months after his accident, that he began complaining of cervical spine pain to a \nphysician.    In  his  report  of  that  date,  Dr.  Tonymon notes  that  he  personally  reviewed \nclaimant’s x-rays from May 22, 2023 and those x-rays were essentially unchanged from \nprior x-rays following claimant’s surgical procedure in October 2020. \n Given this evidence, I find that Dr. Blankenship’s opinion is entitled to little weight \nunder the circumstances.  Contrary to his findings on an x-ray taken almost a year after \nclaimant’s accident which apparently shows a completely failed implant at the C5-6 level, \nthe evidence indicates that claimant not only denied neck pain following his accident on \nApril 26, 2023, but a CT scan taken on that date showed no abnormality.  Thereafter, x-\nrays were taken of the claimant’s cervical spine on May 22, 2023, and did not have any \nindication  of  broken  hardware  as  seen  by  Dr.  Blankenship.    Dr.  Tonymon  specifically \nstated in his report of September 5, 2023, that he had personally reviewed the x-rays from \nMay 22, 2023 and they were essentially unchanged from claimant’s prior x-rays following \nthe surgery in October 2020.  Therefore, to the extent that claimant has an implant at C5-\n6 that has completely failed, I do not find that that condition is related to the claimant’s \naccident on April 26, 2023. \n Further, with respect to this issue, I note that claimant testified that he did not have \nany pain in his neck prior to the fall on April 26, 2023, and that he was not receiving any \n\nSullivan – H302993 \n \n9 \n \nmedical treatment for his neck prior to that time.  However, claimant acknowledged that \nhe  was  taking  the  medication  Nabumetone and had  been  taking  that medication  since \n2020 for his neck injury.  Claimant acknowledged that he had refilled this medication on \nApril 18, 2023, just before his fall on April 26.  Claimant was then asked the following: \n   \n  Q Why were you still taking medicine then if it wasn’t \n  bothering you?  \n \n  A I have to take that medicine daily.  Nabumetone is \n  just – it’s a self-proclaimed Ibuprofen.  I have to take it \n  for pain and inflammation, and if I don’t, I get even worse. \n \n  Q So when Dr. Blankenship says you weren’t getting \n  any treatment and you weren’t having any problems before \n  April 26 of ’23, that’s not right; is it? \n \n  A If I’m taking medication I’ve been prescribed since \n  the surgery that I have to be on long-term, I don’t feel like \n  that’s being treated.  It’s the same as someone who takes \n  like anxiety medicine or something.  It’s a necessary thing. \n  (Emphasis added.) \n \n \n Clearly,  taking  medication  for  pain  and  inflammation  in  the  cervical  spine  is \ntreatment and as acknowledged by claimant, he refilled a prescription for this medication \njust a few days prior to the fall. \n In short, claimant has the burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his cervical spine as a result of the fall on April \n26, 2023.  On the day of his fall claimant was seen at the emergency room and denied \nany neck pain.  Likewise, when he was initially evaluated by Dr. Tonymon, a physician he \nhad previously seen for cervical problems, he again denied any neck pain.  A CT scan \nwas taken of the claimant’s cervical spine on April 26, 2023, and was read as showing no \n\nSullivan – H302993 \n \n10 \n \nabnormality.    Likewise,  an  x-ray taken of claimant’s cervical spine on May 22, 2023 \nrevealed  no  abnormality  and  this  x-ray  was  personally  reviewed  by  Dr.  Tonymon  who \nopined that there was no significant difference in the May 2022 x-ray and x-rays taken \nafter claimant’s surgical procedure in 2020.  To the extent that x-rays  taken  by  Dr. \nBlankenship  almost  one  year  after  the  surgery  show  a  failed  implant  at  C5-6,  those \nfindings were not present immediately after claimant’s accident and I find that claimant \nhas failed to prove by a preponderance of the evidence that he suffered a compensable \ninjury or that those findings present on Dr. Blankenship’s x-ray are causally related to the \nfall that occurred on April 26, 2023.  Therefore, I find that claimant has failed to meet his \nburden of proof. \n I do find that claimant has met his burden of proving by a preponderance of the \nevidence that he is entitled to temporary total disability benefits beginning April 27, 2023 \nthrough May 22, 2023.  Claimant sought medical treatment from Dr. Tonymon, and he \ngave claimant an off-work slip which he backdated to the date of claimant’s injury.  He \ncontinued claimant’s inability to work through May 22, 2023.  I find that claimant remained \nwithin  his  healing  period  and  that  he  suffered  a  total  incapacity  to  earn  wages  for  his \ncompensable  low  back  injury  based  upon  this  opinion  of  Dr.  Tonymon.    Claimant  is \nentitled  to  temporary  total  disability  benefits  beginning  April  27,  2023  and  continuing \nthrough May 22, 2023.   \n Claimant  acknowledged  at  the  hearing  that  he  is  past  due  on  child  support.  \nAccordingly, pursuant to A.C.A. §11-9-110(d)(1), up to 25% of claimant’s temporary total \ndisability benefits are to be withheld for satisfaction of claimant’s child support obligations. \n I also find that claimant has met his burden of proving by a preponderance of the \n\nSullivan – H302993 \n \n11 \n \nevidence that he is entitled to additional medical treatment for his compensable lumbar \nspine injury.   \n As  previously  noted,  claimant  returned  to  see  Dr.  Tonymon  for  his  low  back \ncomplaints.    Dr.  Tonymon  was  of  the  opinion  that  no  treatment  was  necessary  for \nclaimant’s transverse process fractures.  However, in his report of September 5, 2023, \nDr. Tonymon stated that if claimant’s low back pain persisted he should undergo an MRI \nscan  to  assess  the  etiology  of  his  complaints.    Claimant  subsequently  sought  medical \ntreatment as a result of the change of physician from Dr. Blankenship and he did order \nan MRI scan of claimant’s lumbar spine.  That MRI scan was performed on May 31, 2024, \nand  revealed  a  small  disc  herniation  at  the  L5-S1  level  as  well  as  multi-level  facet \narthropathy at  L3-4  and  L4-5.    Dr.  Blankenship  subsequently  recommended  physical \ntherapy  which provided claimant  some  benefit.    Dr.  Blankenship  recommended  that \nclaimant  undergo  additional  physical  therapy  and  also  recommended  that  he  saw  Dr. \nCannon for a possible facet injection.  As of the time of the hearing, the evaluation by Dr. \nCannon and additional physical therapy had not been accepted by respondent.  I find that \nclaimant has met his burden of proving by a preponderance of the evidence that he is \nentitled  to  additional  medical  treatment  for  his  compensable  low  back  injury  as \nrecommended by Dr. Blankenship in the form of physical therapy and an evaluation by \nDr. Cannon. \n  \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that he suffered \na compensable injury to his cervical spine on April 26, 2023.  Claimant has proven by a \n\nSullivan – H302993 \n \n12 \n \npreponderance  of  the  evidence  that  he  is  entitled  to  temporary  total  disability  benefits \nbeginning April 27, 2023 and continuing through May 22, 2023, for his compensable low \nback injury.   Up to 25% of claimant’s temporary total disability benefits are to be withheld \nfor payment of claimant’s child support obligation.  Claimant has also met his burden of \nproving  by  a  preponderance  of  the  evidence  that  he  is  entitled  to  additional  medical \ntreatment as recommended by Dr. Blankenship. \nPursuant to A.C.A. §11-9-715(a)(1)(B), claimant’s attorney is entitled to an attorney \nfee  in  the  amount  of  25%  of  the  compensation  for  indemnity  benefits  payable  to  the \nclaimant.   Thus, claimant’s attorney is entitled to a 25% attorney  fee  based  upon  the \nindemnity benefits awarded.   This fee is to be paid one-half by the carrier and one-half \nby  the  claimant.      Also  pursuant  to  A.C.A.  §11-9-715(a)(1)(B),  an  attorney  fee  is  not \nawarded on medical benefits. \n Respondent is liable for payment of the court reporter’s charges for preparation of \nthe hearing transcript in the amount of $507.14. \n All sums herein accrued are payable in a lump sum and without discount. \n IT IS SO ORDERED. \n \n       ________________________________ \n        GREGORY K. STEWART \n        ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H302993 CORY SULLIVAN, Employee CLAIMANT ACTIONPAQ, Employer RESPONDENT TRAVELERS INSURANCE COMPANY, Carrier RESPONDENT OPINION FILED NOVEMBER 6, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Springdale, Washington County, Arkansas. Cla...","fetched_at":"2026-05-19T22:46:13.195Z","links":{"html":"/opinions/alj-H302993-2024-11-06","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/SULLIVAN_CORY_H302993_20241106.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}