{"id":"full_commission-G106990-2024-01-03","awcc_number":"G106990","decision_date":"2024-01-03","opinion_type":"full_commission","claimant_name":"Linda Michael","employer_name":"Booneville School District","title":"MICHAEL VS. BOONEVILLE SCHOOL DISTRICT AWCC# G106990 JANUARY 3, 2024","outcome":"denied","outcome_keywords":["reversed:1","granted:1","denied:2"],"injury_keywords":["back","lumbar"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Michael_Linda_G106990_20240103.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Michael_Linda_G106990_20240103.pdf","text_length":19213,"full_text":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \n \nCLAIM NO. G106990 \n \n \nLINDA MICHAEL, EMPLOYEE                                      CLAIMANT    \n \nBOONEVILLE SCHOOL DISTRICT,   \nEMPLOYER                                         RESPONDENT NO. 1\n     \nARKANSAS SCHOOL BOARDS   \nASSN., CARRIER                     RESPONDENT NO. 1 \n \nDEATH AND PERMANENT TOTAL \nDISABILITY TRUST FUND         RESPONDENT NO. 2 \n \nOPINION FILED JANUARY 3, 2024 \n \nUpon review before the Full Commission, Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas.   \n \nRespondents No. 1 represented by the HONORABLE MELISSA WOOD, \nAttorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE DAVID PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge: Reversed. \n \n \nOPINION AND ORDER \n  \nRespondents appeal the Opinion filed April 25, 2023, by the \nadministrative law judge (“ALJ”) finding the following: \n1.  The stipulations agreed to by the parties at the pre-hearing \nconference conducted on November 14, 2022, and contained \nin a Pre-hearing Order filed November 15, 2022, are hereby \naccepted as fact. \n\nMICHAEL – G106990               2 \n \n \n2.  The claimant has proven by a preponderance of the evidence \nthat she is entitled to permanent total disability benefits. \n3.  The claimant has proven by a preponderance of the evidence \nthat her attorney is entitled to an attorney’s fee in this matter. \nIn our de novo review, we find that the claimant has not proven by a \npreponderance of the credible evidence that she is entitled to permanent \ntotal disability benefits.    Accordingly, claimant’s attorney is not entitled to \nan attorney’s fee in this matter.     \nOn September 2, 2014, the parties in this matter entered an Agreed \nOrder finding that the claimant was entitled to a permanent partial \nimpairment rating of 14% with an additional 42% in wage loss disability. \nPursuant to the Order, the claimant waived her right to seek additional \nwage loss disability, but she was not barred from seeking permanent total \ndisability benefits in the event of a change in circumstances. \nPrior to the entry of the Agreed Order, the parties were aware \nclaimant had been terminated by the Booneville School District in June \n2014 as they could not meet her permanent medical restrictions. The \nclaimant was prescribed numerous pain medications as of 2014, including \nmethocarbamol, hydrocodone, narco, morphine ER, and oxycodone. The \nclaimant reported that these prescriptions were doubled by March 2014. By \nMay 2014, Patricia Walz, PhD reported that the claimant cried a lot, stayed \nin bed, had suicidal thoughts, and woke from pain at night and was \naveraging four or five hours of sleep.   \n\nMICHAEL – G106990               3 \n \n \nAfter 30 days of job placement assistance in June 2014, Tanya \nRutherford Owen, PhD identified approximately fifteen potential job leads \nafter assisting the claimant in developing a resume and cover letter. Dr. \nOwen opined that “it is often difficult to place an individual in the labor \nmarket who does not believe that she can work.” In response, the \nclaimant’s Licensed Professional Counselor Loretta Gedosh wrote to Dr. \nOwen on August 1, 2014 stating that she “frankly did [not] understand how \nyou feel these are viable leads,” and that the claimant had been advised by \nher treating physician, Dr. Danny Silver, that while the claimant could \nmanage a few hours of physical labor she would be incapacitated for days \nafterward. Ms. Gedosh believed that the claimant’s mental and physical \ncapacity rendered the claimant unable to work any job recommended by Dr. \nOwen. \nOn October 5, 2017, the claimant presented to Dr. Arthur Johnson \nwith Mercy Clinic Neurosurgery in Fort Smith with complaints of low back \npain. Upon reviewing an x-ray of the claimant’s lumbar spine, Dr. Johnson \nreported that “[t]he hardware is in good alignment and position from all 3 \nlevels with the screws at the inferior level been fractured bilaterally.” An MRI \nof claimant’s lumbar spine revealed: \nMild disc degeneration at the L3 L4 (assuming \nlumbarization of the S1) level with no significant \ncanal  stenosis  or  neuroforaminal  stenosis.  No \nstenosis,  disc  herniations  or  neural  foraminal \nstenosis is evident at any of the fused levels of \nthe lumbar spine. \n\nMICHAEL – G106990               4 \n \n \nAssessment:   \n1.    Hardware  failure  of  the  anterior  column  of \nspine, fractured screws at S1. \n2.    Status  post  lumbar  spinal  fusion  L4-5,  L5-\nS1, S1-S2. \n \nPlan: \nI have discussed the treatment options which I \nbelieve include surgery. \nNo  orders  of  the  defined  types  were  placed  in \nthis encounter. \n \nBased  on  that  discussion  we  are  going  to \nproceed with: \nRemoval  of  hardware  L3-S1.  I’m  very  doubtful \nthat  this  will improve  the  patient’s  clinical  pain \nsyndrome.  She  failed  to  respond  to  a  3  level \nlumbar fusion. She is completely fused at all 3 \nlevels according to CT and therefore not having \nany  movement  around  the  areas  where  the \nfractured screws are at S1. \nNo  orders  of  the  defined  types  were  placed  in \nthis encounter. \n \nI  have  explained  the  surgery  to  the  patient, \nremoval of hardware L3-S1, along with the risk \nand benefits. \n \nDr. Johnson conducted surgical hardware removal on December 5, \n2017, and on May 29, 2018, Dr. Johnson authored a letter opining that the \nclaimant had reached maximum medical improvement, stating: \nThe above captioned patient has been under my \ncare and has been released from Neurosurgery \nas of 5/23/2018. \nThe  patient  has  now  reached  her  Maximum \nMedical Improvement. \nShe   was   given   a   permanent   impairment \ndisability  rating  according  to  the  4th  edition  of \nthe  AMA  guidelines  of  1%  impairment  for  the \nhardware   removal   surgery   that   was   done \n12/5/2017. \n\nMICHAEL – G106990               5 \n \n \n \nThis  is  within  a  reasonable  degree  of  medical \ncertainty. \n \nThe only witnesses at the January 26, 2023 hearing were the claimant \nand her husband, Mr. Phillip Michael. When questioned about any changes \nin  the  claimant’s  condition  between  her  first  lumbar  spine  surgery  in  2013 \nand the 2017 hardware removal, Mr. Michael testified that: \nQ:  (By  Mr.  Walker)  So  after  the  first \nsurgery, what kinds of physical activities \ndo you recall you and your wife engaging \nin? That would have been in 2014, 2015. \n \nA:    I mean that was a long time back, but \nnot  a  whole  bunch,  just  to  be  honest.  I \nmean  she  usually  stayed  at  home  most \nof the time. She got out more than what \nshe  does.  We  would  go  to  Walmart  or \nSam’s, you know. \n \nQ:    So  did  there  come  a  time  when \nwhatever  activities  she  was engaging  in \nbecame more limited? \n \nA:    Yeah, I mean – \n \nQ:    What happened? \n \nA:    She got another bolt snapped in her \nback  and  I  couldn’t  get  her  to  hardly  do \nnothing then. A lot of times she just stood \nup and she may fall. \n \nQ:    So  then  did  she  undergo  a  second \nsurgery by Dr. Johnson? \n \nA:    Yes, sir. \n \nQ:    How did she do after that? \n \n\nMICHAEL – G106990               6 \n \n \nA:    Her  limitations  just  went  downhill \nbad. I can’t get her to hardly do anything. \n \nQ:    Compared  to  her  physical  activities \nafter  the  first  surgery  with  her  physical \nactivities after the second surgery, tell us \nhow you would compare those activities. \n \nA:    After the first one she would at least \ntry  to  take  a  bath  and  clean  herself  up, \nyou know, at least every other day. Now \nI am lucky to get her to take a bath every \nsix  days.  Some  days  it  goes  12  days \nbefore she took a bath. It is just hard to \nget her out of her chair to do anything. \n \nWhen  asked  about  his  testimony  regarding  the  claimant  falling,  Mr. \nMichael explained: \nQ: (By Mr. Walker)  So at what point did \nshe start falling? \n \nA:    I  would  say  whenever  the  second \nscrew busted around 2016. \n \nQ:    And  then he  [Dr.  Johnson]  did  the \nsurgery in 2017? \n \nA:    Correct. \n \nQ:    So after the surgery in 2017, did she \never appear to be as active as she was \nbefore 2017? \n \nA:    No, sir. It just got worse. \n \nQ:    And  when  you  say  got  worse,  what \ndo you mean by that? \n \nA:   She just don’t do nothing. I mean to \nget  her  to  do  anything,  I  mean  even  to \ntake a bath is— \n\nMICHAEL – G106990               7 \n \n \nQ:   Well,  now,  you  said  she  doesn’t  do \nanything.  I  mean  she  has  got  to  do \nsomething  in  order  to  get  through  the \nday.  I  mean  she  is  here  today,  so  she \nobviously  does  some  walking  and  stuff, \nso be more specific when you say – when \nyou are trying to tell us what goes on. \n \nA:    She will get up to go to the restroom. \nI have seen her make her a sandwich or \nsomething that was pretty simple to eat. I \nhave  seen  her  put maybe  a  plate  in  the \ndishwasher. She may throw something in \nthe  washing  machine  if  she  ain’t  got  to \nbend over in a basket to get it out. \n \nQ:    Have you seen her lift anything that \nappeared to weigh more than 10 pounds \nsince 2017? \n \nA:    No, sir. \n \nMr. Michael testified as to what he believed the claimant’s day-to-day \nlife looked like: \nShe will wake up anywhere between 7:30 \nand 9:00. I will get up and I will try to fix \nher  something  to  eat  because  she  is \nhungry.  I  bring  her  food  to  her.  She  will \ntake  her  medicine  and  the  next  thing  I \nknow  she  is  asleep  again  in  her  chair. \nShe  may  wake  up,  you  know,  11:30  or \n12:00  ready  for  lunch.  I  mean  it’s  not \nevery day, but most of the days that is the \nway it goes.   \n \nAnd then if I get her to go anywhere, it is \nusually between 1:00 and 5:00 if I can get \nher out of the house. And other than that, \nshe may go back to bed at 6 o’clock, but \nit’s  sometimes  between  6:00  and  8:30 \nshe  goes  back  to  bed  and  stays  in  bed \nuntil the next morning. \n\nMICHAEL – G106990               8 \n \n \n \nThis serves as a stark contrast to the claimant’s testimony on cross- \nexamination. \nQ:    (By  Ms.  Wood)  Okay.  All  right.  You \ntold  me  in  your  recent  deposition  that  if \nyour  husband  goes  to  the  grocery  store \nor Walmart, you try to go; is that right? \n \nA:   Yes, ma’am. \n \nQ:    And  that  you  do  that  maybe  four \ntimes a week; is that correct? \n \nA:   Yes,  ma’am.  I  just  ride  with  him \nwherever  he  goes.  I  don’t  know  how \nmany exact times. \n \nQ:    Okay.  And  you  also  told  us  in  the \ndeposition that you guys go to the casino \nsometimes; is that right? \n \nA:   Yes, ma’am. \n \nQ:    Choctaw  and  one  other  in  the  local \narea? \n \nA:    Yes. \n \nQ:    You told me that you usually go three \nor four times a week; is that right? \n \nA:   Yes, ma’am. \n \nQ:    Usually if you are hitting, you would \nstay  three  to  four  hours,  but  you  have \nstayed five hours before if you are getting \na lot of money, is that right? \n \nA:   Yes, ma’am. \n \nQ:   Sometimes it’s shorter; is that right? \n \n\nMICHAEL – G106990               9 \n \n \nA:   Yes, ma’am. \n \nQ:    You also told me you stop at garage \nsales  every  once  in  a  while;  is  that \ncorrect? \n \nA:   Yes, ma’am. \n \nQ:    And  at  times  your  eight-year-old \ngranddaughter  comes  to  visit  you  guys, \nis that right? \n \nA:   Yes, ma’am. \n \nQ:    Is  that  the  one  that  lives  down  in \nTexas? \n \nA:   Yes, ma’am. \n \nQ:    Okay. And your husband was telling \nus earlier that you have gone down there \nto visit your family; is that right? \n \nA:    Yes. \n \nQ:    At  the  time  of  your  deposition,  you \ntold us that you had gone down there to \nvisit in August of ’21 when your daughter \ngot married. You went again at Christmas \nand two other times in ’22; is that correct? \n \nA:   I think that’s all. \n \nQ:   You think what? I’m sorry. \n \nA:    I think that is all. \n \nQ:    Okay. And one of the times last year \nwas  your granddaughter’s  birthday  in \nJuly  and  you  said  you  guys  went  to \nWalmart    and    Claire’s    to    get    her \nsomething for her birthday; is that right? \n \nA: Yes. \n\nMICHAEL – G106990               10 \n \n \n \nQ:    You  stayed  about  four  or  five  days \nthat trip? \n \nA:    Yes. \n \nWhen asked what complaints led the claimant to assert that she is \nworse now than in 2014, she replied, ““[m]y legs draw up on me more and \nmy joints and my hips and stuff and my back. And my knees bother me \nmore and my legs and my feet. I sound like popcorn sometimes when I walk \nacross the floor.” Her medical records from 2017 to the date of the hearing \nregularly reported that the claimant’s “chronic pain and related symptoms \nare managed to a functional level with current treatment regimen. . . She is \ncontinuing to work at meeting/ maintaining goals.” \nThe claimant’s contention that she is entitled to permanent total \ndisability fails as the claimant cannot offer proof that she has suffered a \nchange in physical condition since the parties entered into their September \n2014 agreement. The Commission may modify a previous award at any \ntime within six (6) months of termination of the compensation period fixed in \nthe original compensation order or award, upon the commission's own \nmotion or upon the application of any party in interest, on the ground of a \nchange in physical condition or upon proof of erroneous wage rate. Ark. \nCode Ann. § 11-9-713(a)(2).   \nAging    and    the    effects    of    aging    on    a \ncompensable injury are not to be considered in \ndetermining  whether  there  has  been  a  change \nin  physical  condition.  Nor  shall  aging  or  the \n\nMICHAEL – G106990               11 \n \n \neffect  of  aging  on  a  compensable  injury  be \nconsidered  in  determining  permanent  disability \npursuant to this section or any other section in \nthis chapter.   \n \nArk. Code Ann. § 11-9-713(e).   \n \n“‘Permanent total disability’ means inability, because of compensable \ninjury or occupational disease, to earn any meaningful wages in the same \nor other employment.” Ark. Code Ann. § 11-9-519(e)(1). The employee \nbears the burden of proving the inability to earn any meaningful wage. Ark. \nCode Ann. § 11-9-519(e)(2). “In the absence of clear and convincing proof \nto the contrary, the loss of both hands, both arms, both legs, both eyes, or \nof any two (2) thereof shall constitute permanent total disability;” however, \n“[i]n all other cases, permanent total disability shall be determined in \naccordance with the facts.” Ark. Code Ann. § 11-9-519(b)-(c). Permanent \nbenefits may only be awarded if the compensable injury was the major \ncause of the disability or impairment. Ark. Code Ann. § 11-9-102(4)(F)(ii)(a). \nArkansas Code Annotated § 11-9-102(4)(D) provides that a compensable \ninjury must be established by medical evidence supported by \"objective \nfindings.\" An objective finding is defined as a finding that cannot come \nunder the voluntary control of the claimant. Ark. Code Ann. § 11-9-102 (16). \nThe same factors that are considered when analyzing wage loss \ndisability claims are usually considered when analyzing permanent and total \ndisability claims. Maulding v. Price's Util. Contractors, Inc., 2009 Ark. App. \n776, 358 S.W.3d 915 (2009). Those factors include the claimant’s age, \n\nMICHAEL – G106990               12 \n \n \nwork experience, education, motivation, post-injury income, credibility, \ndemeanor, and any other matters reasonably expected to affect her future \nearning capacity. Ark. Code Ann. § 11-9-522(b)(1); St. Vincent Health \nServs. v. Bishop, 2010 Ark. App. 141 (2010).   \nEvery condition alleged by the claimant to have changed since the \nOrder dated September 2, 2014 was known and addressed by the parties \nat the time the parties reached the agreement outlined in the Order. By the \ntime the agreement was reached, the claimant’s permanent restrictions had \nbeen addressed by her treating physician and she had been terminated by \nthe Booneville School District. Even though the claimant has undergone an \nadditional surgery and received an additional rating, an additional rating of \none percent (1%), does not justify an award of permanent and total \ndisability.   \nFurther, prior to the Agreed Order there was some debate regarding \nthe claimant’s ability to work. Tanya Rutherford Owen, PhD identified \napproximately fifteen potential job leads, after which the claimant’s \nLicensed Professional Counselor Loretta Gedosh opined that she “frankly \ndid [not] understand how you feel these are viable leads.” Ms. Gedosh \nbelieved that the claimant’s mental and physical capacity rendered the \nclaimant unable to work any job recommended by Dr. Owen. This \ninformation played a role in determining the claimant’s wage-loss at that \ntime which was agreed to by the parties as evidenced by the Order dated \n\nMICHAEL – G106990               13 \n \n \nSeptember 2, 2014. Since that point, the claimant has failed to prove any \nchange in her physical condition that would warrant a finding of permanent \nand total disability. \nBy the claimant’s own testimony, alongside her husband’s, the \nclaimant’s complaints all result from her own self-limiting behavior. With the \naddition of the 1% permanent impairment rating in May of 2018, the \nclaimant is now rated at 15% to the body as a whole. Claimant’s husband \ndescribes the claimant’s activity as, “[n]ow I am lucky to get her to take a \nbath every six days. Some days it goes 12 days before she took a bath. It is \nhard to get her out of the chair to do anything.” Mr. Michael contends that \nhe brings the claimant food and her medicine in her chair “and the next \nthing I know she is asleep again in the chair. She may wake up, you know, \n11:30 or 12:00 ready for lunch. I mean it’s not every day, but most of the \ndays that is the way it goes.” \nThe claimant’s testimony, however, reflects that the claimant goes to \nthe grocery store with her husband up to four times a week. She and Mr. \nMichael go to the casino three to four times a week where they might stay \nfor five hours if they are winning. The couple occasionally shops at garage \nsales and has visited family in Texas four times since August of 2021 \nstaying four or five days at a time. \n  Dr. Arthur M. Johnson performed hardware removal surgery on the \nclaimant on December 5, 2017, and opined she reached maximum medical \n\nMICHAEL – G106990               14 \n \n \nimprovement on May 23, 2018.    He did not place any additional restrictions \non the claimant’s activities.  \nWithout any evidence of a change in the claimant’s physical \ncondition after the September 2, 2014 Order, we find that the claimant has \nfailed to prove the she is entitled to permanent total disability benefits.   \nAccordingly, the Opinion of the ALJ filed on April 25, 2023, is hereby \nreversed. \nIT IS SO ORDERED. \n \n    ____________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ____________________________________ \n    M. SCOTT WILLHITE, Commissioner   \n \n    ____________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. G106990 LINDA MICHAEL, EMPLOYEE CLAIMANT BOONEVILLE SCHOOL DISTRICT, EMPLOYER RESPONDENT NO. 1 ARKANSAS SCHOOL BOARDS ASSN., CARRIER RESPONDENT NO. 1 DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPINION FILED JANUARY 3, 2024 Upon review ...","fetched_at":"2026-05-19T22:29:46.001Z","links":{"html":"/opinions/full_commission-G106990-2024-01-03","pdf":"https://labor.arkansas.gov/wp-content/uploads/Michael_Linda_G106990_20240103.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}