{"id":"alj-H303020-2024-09-27","awcc_number":"H303020","decision_date":"2024-09-27","opinion_type":"alj","claimant_name":"Casey Thompson","employer_name":"Locomotive Service Inc","title":"THOMPSON VS. LOCOMOTIVE SERVICE INC. AWCC# H303020 September 27, 2024","outcome":"denied","outcome_keywords":["dismissed:1","denied:3"],"injury_keywords":["neck","back","cervical","shoulder"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_CASEY_H303020_20240927.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"THOMPSON_CASEY_H303020_20240927.pdf","text_length":10397,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO. H303020 \n \n \nCASEY THOMPSON, EMPLOYEE CLAIMANT \n \nLOCOMOTIVE SERVICE INC., EMPLOYER RESPONDENT \n \nBERKSHIRE HATHAWAY HOMESTATE, CARRIER RESPONDENT \n \n \n \n OPINION FILED SEPTEMBER 27, 2024 \n \n \nHearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian \nCounty, Arkansas. \n \nClaimant represented by MICHAEL L. ELLIG, Attorney, Fort Smith, Arkansas. \n \nRespondents represented by ZACHARY F. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n \n On August 20, 2024, the above captioned claim came on for a hearing at Fort Smith, Arkansas. \nA pre-hearing conference was conducted on June 20, 2024, and a pre-hearing order was filed on that \nsame date. A copy of the pre-hearing order has been marked as Commission’s Exhibit #1 and made \na 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 employee/employer/carrier relationship existed on February 26, 2023. \n            3.   Respondents have controverted the claim in its entirety.  \nBy agreement of the parties, the issues to be litigated and resolved at the forthcoming hearing \n\nThompson-H303020 \n2 \n \nwere limited to the following: \n1.  Whether claimant sustained a compensable injury on February 26, 2023. \n2.  Whether claimant is entitled to medical benefits. \n All other issues are reserved by the parties. \nThe  claimant  contends that “He  is  entitled  to  the  medical  treatment  recommended  by  Dr. \nZhang, as such treatment is necessary for his compensable injury. The claimant further contends that \nthe respondents have denied his entitlement to such treatment and have controverted any appropriate \nbenefits that may arise in the future from such medical treatment.” \nThe respondents contend that “Clamant was not injured in a MVA on February 26, 2023. The \nclaimant’s alleged need for treatment is because of a preexisting condition. The  recommended \ntreatment is not reasonable and necessary.”  \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 \nwitnesses and to observe their demeanor, the following findings of fact and conclusions of law are \nmade 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 on June \n20, 2024, and contained in a pre-hearing order filed that same date are hereby accepted as fact. \n 2.  Claimant has failed to prove by a preponderance of the evidence that he suffered a \ncompensable injury on February 26, 2023.  \nHEARING TESTIMONY \n \n Claimant  testified  that  on  February  26, 2023, he  was  involved  in  an accident  when  the  fuel \ntanker truck he was driving was struck from behind by an inattentive driver. The force of the collision \n\nThompson-H303020 \n \n3 \n \n \ncaused  him  to  spill  the  coffee  in  his  hand. While  there  was  no  discernable  damage  to  the  vehicle \nclaimant was operating, the sedan was disabled due to the damage to it.  \n Claimant  was  already  seeing  Dr.  William  Willis  for  problems  with  his  neck,  back,  and \nshoulders, and had seen Dr. Willis three days before the collision. Among the dozen or more current \nproblems that were listed was cervicalgia; claimant had undergone a C4-C7 anterior cervical fusion in \n2011. Because claimant had a regularly scheduled appointment with Dr. Willis on March 23, 2023, he \ndid not immediately seek medical treatment for his neck pain. When the soreness and stiffness across \nhis shoulders and neck continued, Dr. Willis recommended an MRI or a CT scan. Claimant said the \npain that he was experiencing after the collision was radiating down the left side of his neck and across \nthe shoulder into his left arm, which was not occurring before the accident.  \nAfter the MRI, claimant saw Dr. Shihao Zhang who prescribed physical therapy and injections \nfor  the  neck  condition. Claimant said the workers’ compensation carrier refused to pay for the \ninjections. Claimant  said  Dr.  Zhang  recommended  surgery  and that he  is  willing  to  undergo  that \nprocedure because he cannot stand the pain and the popping in his neck.   \n On cross examination, claimant confirmed that he had a cervical fusion on three levels of his \nneck in 2011 and had treated with Dr. Willis for pain management for his lower back and neck issues \nprior to the collision on February 26, 2023. Regarding the accident itself, claimant said that he was a \nbit sore and stiff but did not have any injuries that were bleeding or anything like that. He continued \nto work normal hours during the following days and weeks. Claimant explained that Dr. Willis had \nrecommended that he see a neurosurgeon and the physician that had done his neck and back surgery \nhad retired, so he saw Dr. Zhang at the same facility.  \n \n \n\nThompson-H303020 \n \n4 \n \n \n \nREVIEW OF THE EXHIBITS \n \n The parties submitted medical records from November 20, 2022, through March 4, 2024, and \neliminated most of the duplicate records. These records included those from Dr. William Willis, Dr. \nShihao Zhang, the MRI reports of May 25, 2023, and October 12, 2023, and both a chart review and \nindependent medical evaluation conducted by Dr. Luke Knox. While there are over a hundred pages \nof these records, claimant’s testimony adequately summarized what was contained in the records from \nDr. Willis. He had treated for neck and back issues for years before February 26, 2023 and did not go \nsee  Dr.  Willis  until  almost  a  month  after  the  accident  when  he  kept  his  regularly  scheduled \nappointment for March 23, 2023 and complained that the accident caused his neck to hurt more than \nit had before February 26, 2023.  At respondent’s request, Dr. Knox did a thorough  chart  review \nwhich I found to be an accurate summary of what had taken place prior to the independent medical \nevaluation. The parts of these records which are determinative to the issue of compensability will be \ndiscussed below. \n \nADJUDICATION \n \n As established by the testimony and medical records, claimant has a long history of problems \nwith his neck that existed before his employment with respondent. An aggravation of a preexisting \nnon-compensable condition is considered a new injury with an independent cause, and thus must meet \nthe requirements for a compensable injury. Ford v. Chemipulp Process, Inc., 63 Ark. App. 260, 977 S.W.2d \n5 (1998). Arkansas Code Annotated section 11-9-102(4)(A)(i) defines a compensable injury as: \n“An accidental injury causing internal or external physical harm to the body ...  \narising  out  of  and  in  the  course  of  employment  and  which  requires  medical \nservices or results in disability or death. An injury is \"accidental\" only if it is \ncaused  by  a  specific  incident  and  is  identifiable  by  time  and  place  of \noccurrence.”  \n\nThompson-H303020 \n \n5 \n \n \n \nThe proof supports claimant’s contention that he was involved in a motor vehicle collision \nwhile at work on February 26, 2023. His delay in seeking medical treatment is a matter of credibility, \nand I believe his testimony that the collision was hard enough to cause him to spill the coffee he had \nin his hand when his truck was struck.  \nHowever,  a compensable  injury  must  be  established  by  medical  evidence  supported  by \nobjective medical findings, Ark. Code Ann. § 11-9-102(4)(D) (Supp. 2009). \"Objective findings\" are \nthose findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-\n102(16). Thus, to be compensable, claimant's alleged aggravation of a preexisting condition must itself \nmeet the definition of a compensable injury, and it is here that claimant’s proof is lacking.  \n Dr. Willis did not express an opinion as to whether the collision of February 26, 2023, caused \nan aggravation of claimant’s preexisting injury. I  would  not  have  expected a  general  practitioner  to \nhave  felt  qualified  to make  such  a  determination. Dr.  Willis recommended  a  CT  scan  and  then  a \nreferral to a neurosurgeon if warranted. Dr. Zhang saw claimant on October 31, 2023, following an \nMRI and  recorded: “Patient  has  adjacent  level  disease  at  C3-4  that might have  been  aggravated. \nCertainly, this could be causing his pain.” (Emphasis added). Dr. Knox did not relate the February 26, \n2023, collision to claimant’s need for treatment at the C3-4 level: “It appears the need for the anterior \ncervical discectomy and fusion, in my opinion, is preexisting to the incident occurring on 2/26/23.”   \nA doctor  need  not  be  absolute  in  an  opinion  or  use  the  magic  words  \"within  a  reasonable \ndegree of medical certainty\" so long as his medical opinion be more than speculation, Freeman v. Con-\nAgra  Frozen  Foods,  344  Ark.  296  (2001).  However, medical  opinions  based  on  \"could,\"  \"may,\"  or \n\"possibly\" lack the definiteness required to prove compensability. Frances v. Gaylord Container Corp., 341 \nArk.  527,  20  S.W.3d  280  (2000). “Might” and “could” was how Dr.  Zhang termed  the  connection \n\nThompson-H303020 \n \n6 \n \n \nbetween the collision and claimant’s neck condition at C3-4; Dr. Knox found that condition predated \nthe incident. As such, claimant lacks the objective medical evidence necessary for him to prove his \nclaim by a preponderance of the evidence, and it must therefore be denied.  \nAs I found claimant did not prove he suffered a compensable injury, his claim for additional \nmedical treatment is moot.  \nORDER \n \n For  the  reasons  set  out  above,  claimant  has  failed  to  meet  his  burden  of  proving  by  a \npreponderance of the evidence that he suffered a compensable injury on February 26, 2023. Therefore, \nhis claim for compensation benefits is hereby denied and dismissed.  \nRespondent is responsible for paying the court reporter her charges of $ 427.95 for preparation \nof the hearing transcript. \nIT IS SO ORDERED. \n                                                                                              \n_______     \n JOSEPH C. SELF \nADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H303020 CASEY THOMPSON, EMPLOYEE CLAIMANT LOCOMOTIVE SERVICE INC., EMPLOYER RESPONDENT BERKSHIRE HATHAWAY HOMESTATE, CARRIER RESPONDENT OPINION FILED SEPTEMBER 27, 2024 Hearing before ADMINISTRATIVE LAW JUDGE JOSEPH C. SELF in Fort Smith, Sebastian County, ...","fetched_at":"2026-05-19T22:49:35.087Z","links":{"html":"/opinions/alj-H303020-2024-09-27","pdf":"https://labor.arkansas.gov/wp-content/uploads/THOMPSON_CASEY_H303020_20240927.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}