{"id":"alj-H304672-2024-03-13","awcc_number":"H304672","decision_date":"2024-03-13","opinion_type":"alj","claimant_name":"Gregory Roberson","employer_name":"Pepper Source Ltd","title":"ROBERSON VS. PEPPER SOURCE LTD AWCC# H304672 MARCH 13, 2024","outcome":"denied","outcome_keywords":["denied:1"],"injury_keywords":["shoulder","neck","back","cervical","thoracic","lumbar","strain","sprain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/ROBERSON_GREGORY_H304672_20240313.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/","filename":"ROBERSON_GREGORY_H304672_20240313.pdf","text_length":16579,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n   \n CLAIM NO.  H304672 \n \nGREGORY ROBERSON, Employee                                                              CLAIMANT \n \nPEPPER SOURCE LTD, Employer                                                         RESPONDENT                                                                                             \n \nBRIDGEFIELD CASUALTY INSURANCE CO., Carrier                           RESPONDENT                                                                        \n \n \n OPINION FILED MARCH 13, 2024 \n \nHearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort \nSmith, Sebastian County, Arkansas. \n \nClaimant represented by EDDIE H. WALKER, JR., Attorney, Fort Smith, Arkansas. \n \nRespondents represented by JASON M. RYBURN, Attorney, Little Rock, Arkansas. \n \n \n STATEMENT OF THE CASE \n  \n On February  12,  2024,  the  above  captioned  claim  came  on  for  hearing  at Fort \nSmith, Arkansas.  A pre-hearing conference was conducted on December 20, 2023 and \na  pre-hearing  order  was  filed  on  that  same date.   A  copy  of  the  pre-hearing order has \nbeen marked 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 right shoulder on July 14, \n2022. \n At the pre-hearing conference the parties agreed to litigate the following issues: \n1.   Compensability of injuries to claimant’s neck and back on July 14, 2022. \n\nRoberson – H304672 \n 2 \nThe claimant contends  he sustained compensable injuries to his neck and back \nas well as his right shoulder.  He contends that the respondents did not dispute liability \nfor the neck and back until after he filed a Petition to Change Physicians.  Claimant is not \nrequesting  any  specific  benefits  at  this  time;  rather,  he  is  requesting  a  determination \nregarding compensability so that he can exercise his one time right to change physicians.  \nThe claimant contends he is entitled to additional compensation in the form of a change \nof physicians; however, he acknowledges that issue cannot be determined at this time \nand therefore reserves his right to exercise his one time change of physicians. \nThe respondents contend the claimant did not sustain a compensable neck or back \ninjury. \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 December  20,  2023 and  contained  in  a  pre-hearing  order  filed  that  same  date  are \nhereby accepted 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 July 14, 2022. \n 3.   Claimant has met his burden of proving by a preponderance of the evidence \nthat he suffered a compensable injury to his thoracic and lumbar spine on July 14, 2022.  \n\nRoberson – H304672 \n \n3 \n \n FACTUAL BACKGROUND \n The parties have stipulated that claimant suffered a compensable injury to his right \nshoulder while working for respondent on July 14, 2022.  On that date the claimant was \npinned between two totes which weighed 160-200 pounds.  Claimant testified that after \nthis incident he had pain in his mid-back and shoulder area; chest; and his neck.   \n Claimant was taken to Baptist Health where he was noted to have abrasions to his \nright  upper  back  and  bruising  to  his  upper  abdomen.    Claimant  was  diagnosed  with  a \ncrush  injury  to  his  right  arm;  crushed  chest;  abrasion  of  right  side of  back;  injury  of \nabdomen;  and  crushing injury  of  right  hand.    After  his  initial  treatment,  claimant  was \nevaluated  by  Cynthia  Johnson,  APRN.    In  her  report  of  July  27,  2022,  she  diagnosed \nclaimant’s condition as (1) pain in right shoulder; (2) strain of muscles, fascia and tendons \nat shoulder and upper arm level, right arm; (3) abrasion of right back wall of thorax; (4) \nabrasion of right front wall of thorax; (5) contusion of thorax; (6) cervical back pain; (7) \nsprain of ligaments of thoracic spine; and (8) sprain of ligaments of lumbar spine. \n Johnson’s  treatment  included  physical  therapy,  but  when  claimant’s  complaints \ncontinued she ordered MRI scans of claimant’s thoracic and lumbar spines which were \nperformed on August 24, 2022.  Based on the test results which revealed protrusions and \nbulges, Johnson referred claimant for a neurosurgical evaluation with Dr. Tomecek.   \n Claimant’s initial visit with Dr. Tomecek occurred on October 6, 2022, at which time \nhe noted that claimant’s lumbar MRI revealed a small disc herniation at L4-5 and that the \nthoracic MRI showed a disc protrusion at T5-6 and T8-9 with disc bulges at T2-3 and T3-\n4.  Dr. Tomecek stated that claimant would benefit from additional physical therapy and \nan L4-5 injection from Dr. Goodman.   \n\nRoberson – H304672 \n \n4 \n \n Claimant  returned  to  Dr.  Tomecek  on  December  1,  2022,  and  he  noted  that \nclaimant had undergone the injection and therapy and indicated that claimant felt 80-90% \nbetter.  Dr. Tomecek stated: \n  In regards to his low back injury I feel he has reached \n  maximal medical improvement.  On releasing him from \n  active medical care and regards to his thoracic and  \n  lumbar spine today.  He can continue to work at his \n  new regular job without restrictions. \n \n \n At the time he was seeing Dr. Tomecek for his spinal complaints claimant was also \nseeing  Dr.  Smith  for  his  right  shoulder  complaints.    Dr.  Smith  ordered  a  functional \ncapacities  evaluation  which  was  considered  to  be  reliable  and  indicated  that  claimant \ncould perform work in the medium classification.   \n Claimant returned to Dr. Smith on June 28, 2023 for a follow-up visit.  Dr. Smith \nnoted  that  claimant  was  making  complaints  of  additional  pain  during  and  after  the \nfunctional capacities evaluation.  Dr. Smith stated: \n  Right shoulder and upper extremity pain.  This seems to \n  be a little bit different of presentation the last time I saw \n  him.  I am more concerned with cervical radiculopathy \n  given the location and the constellation of symptoms. \n  I am recommending that we get x-rays of his cervical \n  spine.  I would also recommend an EMG nerve conduc- \ntion study of the right upper extremity.  Pending the \nresults of the x-rays of his c-spine, may give considera- \ntion to an MRI of the cervical spine. \n \n \n That same day claimant underwent x-rays of his cervical spine which revealed  \n degenerative changes.   Claimant also underwent an MRI scan of his cervical spine on   \nJuy 11, 2023 with the following impression: \n   \n\nRoberson – H304672 \n \n5 \n \n  C3-C4 Small central disc protrusion without significant \n  indentation subarachnoid space.  Mild foraminal spurring. \n  Diffuse mild disc bulges C5-C6, C6-C7 with foraminal \n  spur.   \n \n \n Subsequent  to  the  cervical  MRI  scan  claimant  returned  to  Dr. Tomecek on \nSeptember  7,  2023.    Dr. Tomecek  noted  the  MRI  findings  and  prescribed  physical \ntherapy.  Following  physical  therapy  claimant  returned  to  Dr.  Tomecek  on  October  5, \n2023, at which time he opined that claimant had reached maximum medical improvement \nand released claimant to return to work with no restrictions. \n As   previously   noted,   the   parties   have stipulated that   claimant   suffered   a \ncompensable injury to his right shoulder on July 14, 2022.  In addition to providing medical \ntreatment  for  the  right  shoulder,  respondent  also  provided  medical  treatment  for \nclaimant’s cervical, thoracic, and lumbar spine complaints.  After claimant was released \nby Dr. Tomecek on September 7, 2023, claimant filed a petition for a change of physician.  \nAt that point, respondent chose to deny compensability of injuries to claimant’s neck and \nback  on  July  14,  2022.    Claimant  has  filed  this  claim  contending  that  he  suffered \ncompensable injuries to his neck and back on July 14, 2022. \n \nADJUDICATION \n Claimant contends that he suffered compensable injuries to his neck and back as \na  result  of  the  accident  on  July  14,  2022.    Claimant’s  claim  is  for  a  specific  incident, \nidentifiable by time and place of occurrence.   In order to prove a compensable injury as \nthe  result  of  a  specific  incident  that  is  identifiable  by  time  and  place  of  occurrence,  a \nclaimant must establish by a preponderance of the evidence (1) an injury arising out of \n\nRoberson – H304672 \n \n6 \n \nand in the course of employment; (2) the injury caused internal or external harm to the \nbody  which  required  medical  services  or  resulted  in  disability  or  death;  (3)  medical \nevidence  supported  by  objective  findings  establishing  an  injury;  and  (4)  the  injury was \ncaused by a specific incident identifiable by time and place of occurrence.  Odd Jobs and \nMore v. Reid, 2011 Ark. App. 450, 384 S.W. 3d 630.    \n First, I note that there is no question that the accident occurred on July 14, 2022 \nsince the parties have stipulated that claimant injured his right shoulder as a result of that \naccident.  Therefore, I find that claimant has proven that his injury arose out of and in the \ncourse of his employment and that the injury was caused by a specific incident identifiable \nby time and place of occurrence. \n I also find that claimant has proven that his injury caused internal or external harm \nto his body that required medical services.  The medical records indicate that claimant \ncomplained  of  pain  in  both  his  neck  and  back  which  resulted  in  him  receiving  medical \ntreatment.  This treatment included physical therapy and a lumbar epidural injection.  In \naddition, because of claimant’s complaints, medical tests in the form of cervical, thoracic, \nand lumbar MRI scans were performed.   \n The primary issue in this claim is whether claimant has satisfied the last element \nof  compensability – medical evidence  supported  by  objective  findings  establishing  the \ninjury.  I find that claimant has met his burden of proof with respect to his thoracic and \nlumbar spines.  I also find that claimant has failed to meet his burden of proof with respect \nto his cervical spine. \n Based on claimant’s complaints of thoracic and lumbar pain, claimant underwent \na thoracic MRI and lumbar MRI on August 24, 2022, approximately seven weeks after his \n\nRoberson – H304672 \n \n7 \n \naccident on July 14.  The MRI reports contain the following impressions: \n  8/24/22 MRI Lumbar Spine: \n  Mild degenerative changes of the lumbar spine as \n  described above.  Small far left lateral protrusion L4-5 \n  with mild left L4-5 foraminal stenosis.  No canal stenosis. \n \n  8/24/22 MRI Thoracic Spine: \n \n  Multilevel degenerative changes as above with left-sided \n  disc bulges at T2-3 T3-4.  Left-sided disc protrusion  \nT5-6 with some left ventral thecal sac compression.  No \ncanal stenosis.  No compression fractures. \n \n \n After  the  MRIs  were  performed,  claimant  was  referred  to  Dr.  Tomecek  for \ntreatment.  In his report of October 6, 2022, he noted that claimant’s lumbar MRI scan \nshowed a small disc herniation at L4-5 and that the thoracic scan showed disc protrusions \nat T5-6 and T8-9 with disc bulges at T2-3 and T3-4.  He diagnosed claimant’s condition \nas  a  lumbar  herniated  disc  at  L4-5  and  a  thoracic  disc  at T5-6.    He  also  prescribed \nphysical therapy and a lumbar epidural injection.   \n While Dr. Tomecek did indicate that the MRI scan revealed degenerative changes, \nhe also noted that there was a lumbar herniated disc and disc bulges present.  These are \nobjective findings and satisfy the remaining element of compensability. \n Accordingly,  based  on  the  foregoing,  I  find  that  claimant  has  met  his  burden  of \nproving by a preponderance of the evidence that he suffered compensable injuries to his \nthoracic and lumbar spine as a result of the accident on July 14, 2022.   \n With respect to the claimant’s cervical spine, I find that he has failed to meet his \nburden of proof.  The medical records do indicate that claimant made complaints of neck \npain immediately after the accident on July 14.  However, unlike the lumbar and thoracic \n\nRoberson – H304672 \n \n8 \n \nMRIs, there was no MRI performed on the claimant’s cervical spine in August 2022.  After \nthose  MRIs  were  performed  and  claimant  began  treating  with  Dr. Tomecek,  claimant’s \ntreatment focused on the thoracic and lumbar spine.  In his report of December 1, 2022, \nDr. Tomecek indicated that he was releasing claimant from his care for his thoracic and \nlumbar spine.  He also indicated that claimant could return to work without restrictions.   \n Claimant  subsequently  underwent  a  functional  capacities  evaluation  and  was \nreleased by Dr. David Dimet, an associate of Dr. Smith who is treating claimant for his \ncompensable shoulder injury.  After this release claimant did not return to see Dr. Smith \nagain until June 28, 2023.  Dr. Smith reported that claimant gave a history of a burning \npain  in  his  upper  trapezial region  as  well  as  numbness  down  into  the  hand  which  he \nnoticed  during  the  FCE  and  afterwards.    Dr.  Smith  noted  that  this presentation  was “a \nlittle bit different of presentation the last time I saw him.”  Dr. Smith was concerned with \ncervical radiculopathy and ordered an EMG nerve conduction study, x-rays, and a cervical \nMRI.   \n The EMG of July 27, 2023 was interpreted as normal.  The x-rays of June 28, 2023 \nwere interpreted as showing multilevel degenerative changes.  The July 11, 2023 cervical \nMRI scan contained the following impression: \n  C3-C4 small central disc protrusion without significant \n  indentation subarachnoid space.  Mild foraminal \n  spurring.  Diffuse mild disc bulges C5-C6, C6-C7  \n  with foraminal spur. \n \n \n A  small  disc  protrusion  would  be  considered  an  objective  finding;  however, \naccording to Dr. Tomecek, the findings on the cervical MRI scan were degenerative in \nnature and not acute.  In his report of September 7, 2023, Dr. Tomecek stated: \n\nRoberson – H304672 \n \n9 \n \n  On objective testing he has a normal EMG of the right \n  upper extremity with no sign of nerve injury.  He has an \n  MRI of the cervical spine that shows no acute injury \n  fractures or subluxations.  This appears to be a soft \n  tissue injury.  (Emphasis added.) \n \n \n Dr. Tomecek reiterated that the MRI scan showed only degenerative changes in \nhis report of October 5, 2023, in which he stated: \n  He has undergone an EMG on 7/27/2023 and this was \n  a normal study with no evidence electrographically of \n  cervical radiculopathy, plexopathy, no evidence of peri- \n  pheral neuropathy or any peripheral nerve entrapment \n  syndrome or injury in the arm.  He has had an MRI on \n  7/11/2023 that I have reviewed that only shows minimal \n  degenerative disc bulges at C3-4 C4-5 C5-6 and C6-7. \n  There is mild degenerative change of the disc and with \n  loss of cervical lordosis.  (Emphasis added.) \n \n \n Thus, according to Dr. Tomecek, the findings on claimant’s cervical MRI scan are \ndegenerative  in  nature.    Based  upon  Dr.  Tomececk’s opinion  that  these  findings  are \ndegenerative  in  nature  and  not  acute,  I  find  that  claimant  has  failed  to  offer  medical \nevidence supported by objective findings establishing an injury to his cervical spine on \nJuly 14, 2022.   \nAWARD \n Claimant has failed to prove by a preponderance of the evidence that he suffered \na compensable injury to his cervical spine on July 14, 2022.  Claimant has proven by a \npreponderance of the evidence that he suffered a compensable injury to his thoracic and \nlumbar spine on July 14, 2022.   \n Respondents are liable for payment of the court reporter’s charges for preparation \nof the hearing transcript in the amount of $393.45. \n\nRoberson – H304672 \n \n10 \n \n IT IS SO ORDERED. \n \n     _______________________________________ \n      GREGORY K. STEWART \n      ADMINISTRATIVE LAW JUDGE","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H304672 GREGORY ROBERSON, Employee CLAIMANT PEPPER SOURCE LTD, Employer RESPONDENT BRIDGEFIELD CASUALTY INSURANCE CO., Carrier RESPONDENT OPINION FILED MARCH 13, 2024 Hearing before ADMINISTRATIVE LAW JUDGE GREGORY K. STEWART in Fort Smith, Sebastian County...","fetched_at":"2026-05-19T22:56:28.486Z","links":{"html":"/opinions/alj-H304672-2024-03-13","pdf":"https://labor.arkansas.gov/wp-content/uploads/ROBERSON_GREGORY_H304672_20240313.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/administrative-law-judge-opinions/"}}