{"id":"full_commission-G803817-2023-03-24","awcc_number":"G803817","decision_date":"2023-03-24","opinion_type":"full_commission","claimant_name":"Jacqueline Freeman","employer_name":"Arkansas Department Of Corrections","title":"FREEMAN VS. ARKANSAS DEPARTMENT OF CORRECTIONS AWCC# G803817 MARCH 24, 2023","outcome":"granted","outcome_keywords":["granted:4","denied:2"],"injury_keywords":["lumbar","back","knee","strain","hip","carpal tunnel"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Freeman_Jacqueline_G803817_20230324.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Freeman_Jacqueline_G803817_20230324.pdf","text_length":39049,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G803817 \n \nJACQUELINE D. FREEMAN, \nEMPLOYEE \n \nCLAIMANT \nARKANSAS DEPARTMENT OF CORRECTIONS,  \nEMPLOYER \n \nRESPONDENT \nPUBLIC EMPLOYEE CLAIMS DIVISION, \nINSURANCE CARRIER/TPA \n \nDEATH & PERMANENT TOTAL \nDISABILITY TRUST FUND \nRESPONDENT NO. 1 \n \n \nRESPONDENT NO. 2 \n \n  \n      \nOPINION FILED MARCH 24, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE JIM R. BURTON, Attorney at \nLaw, Jonesboro, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE CHARLES H. \nMcLEMORE, JR., Attorney at Law, Little Rock, Arkansas. \n \nRespondents No. 2 represented by the HONORABLE CHRISTY L. KING, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nSeptember 7, 2022.  The administrative law judge found that the claimant \nfailed to prove she was entitled to additional medical treatment, and that the \nclaimant failed to prove she was entitled to additional temporary total \ndisability benefits.  After reviewing the entire record de novo, the Full \nCommission affirms the administrative law judge’s opinion.     \n\nFREEMAN - G803817  2\n  \n \n \nI. HISTORY \n The record indicates that Jacqueline Freeman, now age 52, \nunderwent a lumbar decompression, discectomy, and fusion in December \n2010.  The post-operative diagnosis was “Spinal stenosis, degenerative \nspondylolisthesis of L4 and L5 with disk herniation.”  The claimant \nunderwent additional lumbar surgery in October 2015.  The post-operative \ndiagnosis was “Recurrent stenosis at L4-5, disk herniation at L5-S1 with \nradiculopathy, evidence of pseudoarthrosis at L4-5.”  The claimant testified \nthat she had been assigned permanent work restrictions as a result of her \nsurgeries in 2010 and 2015.      \n The record indicates that the claimant became employed with the \nrespondents, Arkansas Department of Corrections, on October 16, 2017.  \nThe claimant testified that her job title was Administrative Specialist and \nthat she worked in the respondent-employer’s file room.  The claimant \ntestified that she was eventually transferred to the respondent-employer’s \nmail room.  The claimant testified that her work included transporting mail to \nthe United States Postal Service for delivery as well as picking up mail for \ndistribution to inmates at the Department of Corrections.      \n The record contains two Disciplinary Actions dated May 14, 2018.  \nThe claimant was charged with “Failure to adhere to work hours” and \n“Unsatisfactory work performance.”  The claimant received an oral \n\nFREEMAN - G803817  3\n  \n \n \nreprimand.  The claimant was also charged with “Discourteous treatment of \nothers” and “Insolence to supervisor or persons of higher rank.”  The \nclaimant received a written remand for the latter violations.   \n Deputy Warden Steven Ricketts corresponded with the claimant on \nMay 28, 2018 and informed the claimant in part, “Ms. Freeman, you are still \nwithin your probationary period and have developed a pattern of the \nbehavior listed above.  You often use the excuse of things that you are \ngoing through in your personal life as the cause of the problems here at \nwork.  Issues that you have been involved in has been discussed with you \nseveral times and have progressed to written documentation of these \ndiscussions.  Following the progressive discipline procedures, I am \nrequesting that you be seen by the Grimes Unit Employee Review \nCommittee for determination of appropriate disciplinary action.  You will be \nnotified of a date and time to appear before the review board.”   \nThe parties stipulated that the employee-employer-carrier \nrelationship existed on May 29, 2018.  The claimant testified on direct \nexamination: \nQ.  And if you will, thinking back to May 29\nth\n of 2018, what \nhappened – what happened to make that day memorable to \nyou? \nA.  Well, what happened was Andrew was supposed to come \nto work.  He didn’t show up.  I was actually off that day.  I \nwasn’t even supposed to come in.  The acting supervisor was \nthere because the other supervisor was off work on leave.  \nThe director was there.  I was supposed – everybody was \n\nFREEMAN - G803817  4\n  \n \n \nsupposed to get a chance to go talk to her, but I didn’t get a \nchance to because the acting supervisor told me she need me \nto go do the mail.  And I advised her I did not have my back \nbrace, and I was by myself, and I needed help doin’ it.  So she \ndidn’t help me.  So I went without a back brace and I had to \ngo get the mail. \nQ.  Okay.  Okay.  And was that when your back started hurtin’ \nagain? \nA.  Yes.  Yes.  Yes.  The mailroom is what really caused my \nback to really hurt me.   \n \n The parties stipulated that the claimant sustained “a compensable \nlumbar injury” on May 29, 2018.  According to the record, Dr. Matthew P. \nJackson saw the claimant on June 7, 2018: \nShe is a clerical worker at Grimes Unit, Arkansas Dept. of \nCorrections.  She was working at the mail room 5/29 and had \nto go to the post office and pick up the mail which was over \n50-60 pounds.  She says she has chronic back problems and \nwas supposed to have a restriction of 15-20 pounds lifting at \nwork.  She is also is able to sit on a donut pillow and use a \nknee sleeve while at work.  She says she hurt her back and \nleg lifting the mail and they still made her do it the next day \nand she hurt it more.  She goes to pain management with Dr. \nQureshi in Little Rock and takes gabapentin and oxycodone.  \nShe had a lumbar laminectomy in 2010 and discectomy in \n2015.  Since her injury, she has worse pain in the right low \nback and both thighs.  Her pain is severe and constant.  She \nis not able to do the lifting required in the mail room due to her \npain. \n \n Dr. Jackson assessed “1.  Strain of lumbar region, initial encounter.  \nRecommend she be off work until she improves.  Recheck on Monday.  \nHopefully she can return to her previous job without the heavy lifting.  2.  \nBilateral thigh pain.  3.  Muscle spasm.”   \n\nFREEMAN - G803817  5\n  \n \n \n Dr. Jackson noted on June 11, 2018, “She is here to follow up on \nback injury.  She complains of severe constant pain in the right low back, \nradiating to both legs since her injury at work.  On 5/29 and 5/30 she states \nshe lifted 50-60 pound sacks of mail multiple times, and that is when her \npain started.  She is unable to even sit for very long due to the severe pain.”  \nDr. Jackson assessed “1.  Strain of lumbar region, subsequent encounter.  \n2.  Bilateral thigh pain.  3.  Muscle spasm.  4.  Acute right-sided low back \npain, with sciatica presence unspecified.  She has severe pain on top of \nchronic problems.  She is not better with observation.  Refer for MRI and \nneurosurgical eval....Off work.  Recheck 4 weeks.”  \n The respondents terminated the claimant’s employment effective \nJune 12, 2018.  The claimant was discharged as a result of alleged \nviolations which included “a.  Loitering, visiting, excessive personal use of \nthe telephone” and “n.  Conduct unbecoming a public employee.”      \n An MRI of the claimant’s lumbar spine was taken on June 19, 2018 \nwith the following impression: \n1.  Interval right laminotomy at L4-5 when compared to \n07/26/2007, with bilateral pedicle screws at L5 and right \npedicle screw at L4. \n2.  Grade I spondylolisthesis of L4 on L5 with a broad-based \npseudoprotrusion causing severe central canal stenosis. \n3.  Broad-based right posterolateral intraforaminal disc \nprotrusion at L5-S1 with facet arthropathy causing severe \nright foraminal stenosis.   \n \nDr. Justin Seale provided an IME on July 16, 2018: \n\nFREEMAN - G803817  6\n  \n \n \nMiss Freeman is a 47-year-old female with chronic history low \nback issues ongoing since a work-related injury in California in \n1993. \nShe is here today to be evaluated after sustaining a work \nrelated lifting injury on 5/29/18.  After that time she developed \nsevere right buttock and leg pain.  The pain is burning.  The \npain is progressive worsening.  Rest does help.  Bending and \nsquatting [makes] the pain worse.   \nShe has had numerous injections over the years.  She has \nrecently been undergoing left sided low back injections.  She \nreports having a recent right-sided injection but details of this \nare unknown.... \nPast medical history includes substantial history of lumbar \nissues.  She has a history of 2 prior surgeries 1 and 2010 and \nin 2016 by Dr. Shaheem (sic).  I reviewed clinic notes back till \n2016 and found no evidence of right buttock and leg pain but \nit had resolved until the last 2 years.  I could find no evidence \nto contradict this in her medical history.... \nI spent over one hour with the patient today reviewing her CTs \nand MRIs.  She was quite confused due to the fact that I \nfound no objective finding of injury.  She was also not aware \nof the continued severe stenosis at L4 5 with large calcified \ndisc protrusion or [could not] remember it.   \nI discussed the fact that she had no objective findings of injury \nbut she concurred that she had no pre-existing history of right \nleg pain leading up to the injury.  Therefore the pain did not \npreexist her injury.  Therefore it is within a certain degree of \nmedical certainty that at least 51% of the patient’s current \nsymptoms are directly related to their work injury.  If I was \nshown proof of existing right leg pain over the past 2 years, \nthis opinion [would] change.   \nConcerning treatment recommendations, I recommend a right \nL5-S1 transforaminal injection.... \n \n Dr. Seale assessed “1.  Severe stenosis, due to calcified disc \nprotrusion, L4 5 with right lower extremity radiculopathy.  2.  Right L5-S1 \nparacentral and foraminal disc protrusion, with right lower extremity.  3.  \n\nFREEMAN - G803817  7\n  \n \n \nAggravation of the above pre existing conditions.  4.  Status post L4-5 \nunilateral instrumented fusion, Dr. Shaheem (sic).”   \n Dr. Seale noted on July 16, 2018, “Jacqueline Freeman is currently \nunder my medical care and was seen in my office today.  Please excuse \nJacqueline.  She may return to work.  Restrictions are as follows:  No \nbending, lifting over 20lbs, no twisiting (sic), no sitting/standing greater than \n20 minutes.”  Dr. Seale noted in part on August 20, 2018, “Her recent \ninjection did not help....We will get her repeat right L5-S1 transforaminal \ninjection.”   \n Dr. Seale reported on November 26, 2018: \n  She had her third and final injection.   \nBriefly discuss surgery again which would be an L4 S1 fusion.  \nPatient does not want to have surgery at this point. \nThe patient is at maximum medical improvement from a \nsurgical standpoint but may continue pain management with \nDr. Qureshi.   \nThe patient’s impairment rating will be a 0% because no \nobjective findings of injury.  The prior disc protrusion was \ncalcified and pre existing.   \nI’m releasing the patient from my medical care.   \nI will see the patient back only as needed.   \nThe patient states they are unable to return back to work due \nto their pain.  My recommendation is for a functional capacity \nexam.  If the patient has a valid functional capacity exam, then \n[she] may return back to work per the defined restrictions of \nthat the valid functional capacity exam.  If the functional \ncapacity exam is invalid, the patient may return back to work \nfull duty without restrictions. \nI will continue the patient’s work restrictions of no bending, \ntwisting or lifting over 20 pounds until the results of [her] \nfunctional capacity exam are available.   \n\nFREEMAN - G803817  8\n  \n \n \nThere is no need for the patient to follow up after the \nfunctional capacity exam.  My instructions following a \nfunctional capacity exam are clearly stated above.   \n \n Dr. Seale noted on November 26, 2018, “Jacqueline Freeman is \ncurrently under my medical care and was seen in my office today.  Please \nexcuse Jacqueline for time missed on 11/26/18.  She may return to work on \n11/26/2018.  Activity is restricted as follows:  light duty and no bending, no \nlifting over 20 lbs., no twisting.”   \nThe parties stipulated that “certain benefits have been paid through \nat least November 26, 2018,” and that the respondents “have controverted \nadditional benefits beyond November 26, 2018.” \n The claimant participated in a Functional Capacity Evaluation on \nNovember 28, 2018:  “The results of this evaluation indicate that an \nunreliable effort was put forth, with 29 of 50 consistency measures within \nexpected limits....Ms. Freeman completed functional testing on this date \nwith unreliable results.  Overall, Ms. Freeman demonstrated the ability to \nperform work in at least the LIGHT classification of work[.]”     \n Dr. Seale reported on January 28, 2019: \nI was able to review the patient’s functional capacity exam \nfrom 11/20/18.  The patient’s effort was unreliable.  The \npatient had 29 of 50 consistency measures within expected \nlimits.  The data provided indicates that the patient did not put \nforth a consistent effort.  [Due] to this unreliable effort, \npatient’s current functional status remains unknown.  Please \nrefer to the functional capacity exam for details. \n\nFREEMAN - G803817  9\n  \n \n \nTherefore, I recommend the patient return back to work full \nduty without restrictions and is at maximum medical \nimprovement as of the date of his functional capacity exam \ncompletion, 11/28/18.   \nThe patient’s MRI findings do not show acute findings or \nobjective findings of injury.  This is why her impairment rating \nwas 0%.  The patient’s objective findings do correlate with her \nsymptoms and subsequent need for surgery.  However, the \npatient’s unreliable functional capacity exam makes me \nhesitate on offering further surgery.  My current \nrecommendation would be for any surgical intervention to be \noutside Worker’s Comp. on her regular insurance to remove \nany possible secondary gain issues. \nPatient is at maximum medical improvement from a Worker’s \nComp. standpoint.   \n \n The record contains a Change of Physician Order dated February \n14, 2019:  “A change of physician is hereby approved by the Arkansas \nWorkers’ Compensation Commission for Jacqueline Freeman to change \nfrom Dr. J. Justin Seale to Dr. Kenneth Rosenzweig.” \n The claimant began treating with Dr. Kenneth M. Rosenzweig on \nFebruary 27, 2019: \nMs. Freeman is a 48-year-old.  Her original injury was on the \njob in 1993 in California.  She has had two back surgeries by \nDr. Shahim dating back to 2010 and 2015.  She aggravated \nher back and injured it in May of 2018 while lifting a heavy box \nat the post office.  She was evaluated by Dr. Justin Seale.  \nShe has had transforaminal epidurals with Dr. Qureshi which \nshe reports did not help much.  She is having ongoing right \nlow back pain and right buttock and hip pain with burning and \npins and needles into her legs.  She had an FCE in November \nof 2018.... \nDr. Seale had suggested in November of 2018 that she have \na third and final injection.  They discussed further surgery.  \nThe patient did not want to have more surgery.  He \nrecommended continued pain management with Dr. Qureshi.  \n\nFREEMAN - G803817  10\n  \n \n \nHe offered a 0% impairment due to no objective findings of \nthe injury.  The prior disc protrusion was calcified and \ntherefore preexisting.  The patient was released from his care \nand was to return as needed.  He required that the patient \nhave a valid functional capacity exam.  Otherwise, she was \nreleased to work at full duty with restrictions.... \n \n Dr. Rosenzweig’s impression was “1.  Postlaminectomy syndrome.  \n2.  Spondylolisthesis.  3.  Spinal stenosis and foraminal stenosis....I would \nlike to get all of the information available to clarify her current state.  It is my \nunderstanding she transferred her care.”  Dr. Rosenzweig also assigned \nwork restrictions on February 27, 2019.   \n Dr. Rosenzweig’s impression on March 28, 2019 was “Chronic back \npain in a worker’s compensation claimant with secondary concerns of failed \nback surgeries x 2.”  Dr. Rosenzweig recommended, “1.  Patient is \ninterested in further surgery for her ongoing pain complaints.  2.  A \nconsultation with Dr. Tim Burson in the Baptist system will be scheduled \nregarding diagnosis, prognosis, and treatment options from a surgical \nstandpoint.”  The claimant testified that the respondent-carrier would not \nauthorize a referral to Dr. Burson.   \n On July 12, 2019, Dr. Rosenzweig answered “Yes” to the following \nquery:  “In your opinion is the patient’s work injury the major cause (at least \n51%) of the current need for treatment and current restrictions?”     \n Meanwhile, the claimant underwent a Left Carpal Tunnel Release on \nJuly 18, 2019.  The post-operative diagnosis was “Left Carpal Tunnel.” \n\nFREEMAN - G803817  11\n  \n \n \n The claimant followed up with Dr. Rosenzweig on July 24, 2019: \nMs. Freeman is a 48-year-old worker’s compensation claimant \nwho injured her back lifting heavy bulk mail.  She has ongoing \nback pain and leg pain.  She has had multiple surgeries on \nher back five years apart.  She is having radicular symptoms \nrelated to previous surgery with respect to adhesive scar \ntissues and radiculitis.  She has not been able to work since \nher injury.  She is requesting a return to work slip regarding \nwhen she will be able to return back to work.  She has not \ndemonstrated any substantial improvement since her last visit.  \nShe is having considerable pain in her right leg and she has \nnot restored her spinal range of motion.  She presents today \nwith two other women while she sits on the table.  She \nrecapitulated how she hurt her back the last time which was in \na work activity where she was required to lift heavy packages \nfrom the mail office and cases and cartons.  She provided \npictures of what she was doing.  This appears to be standard \nmail carriers with letters and small packages.  She states her \nhurt her back at the time she was lifting these parcels.  She \nreported that worker’s compensation has denied any further \ntreatment.  She has not returned back to work.... \nIn review of her diagnostics, she has degenerative disk \ndisease at L4-L5 and L5-S1 and a grade I listhesis at L4-L5.  \nShe has canal stenosis and eccentric disk protrusion at L5-S1 \nwith foraminal stenosis.  \n \n Dr. Rosenzweig’s impression was “1.  Persistent radiculitis of the \nright lower extremity.  2.  Postlaminectomy syndrome....A caudal epidural \nsteroid injection will be scheduled to help defervesce pain and inflammation \nregarding the low back and right leg.”         \n Dr. Rosenzweig performed a “Caudal epidural steroid injection on \nthe right” on October 1, 2019.  The post-operative diagnosis was “Post-\nlaminectomy syndrome with radiculitis.”  Dr. Rosenzweig performed a “High \nepidural steroid injection L2-L3 level to the right” on October 15, 2019.  The \n\nFREEMAN - G803817  12\n  \n \n \npost-operative diagnosis was “1.  Post laminectomy syndrome.  2.  Disk \nherniation.  3.  Radiculitis, right greater than left.”   \n Dr. Rosenzweig’s impression on October 30, 2019 was \n“Postlaminectomy syndrome with referred pain down her legs with mixed \nresponse to epidural steroids with one above her fusion and one below from \na caudal approach.”  Dr. Rosenzweig planned, “1.  An updated MRI will be \nconsidered.  2.  Surgical consultation will be considered.  3.  A third epidural \nto complete her series will be considered.”   \n Dr. Rosenzweig reported on November 21, 2019: \nMs. Freeman is a 48-year-old worker’s compensation claimant \nwho injured her back lifting heavy bulk mail.  She has two \ndates of injury on May 29, 2018 and June 2, 2018.  She has \nhad two previous back surgeries.  She has had back to back \nhigh and low epidural steroids from a high approach and \ninitially from a caudal approach.  She had undergone an FCE \nwhich she reports her hurt and is making her hurt worse. \nAn updated MRI reveals a broad based pseudo protrusion \nwith an acquired canal stenosis but no significant changes, a \nprior laminectomy on the right, pedicle screw intact, and \nmoderate right and mild left facet arthropathy with ligamentum \nflavum buckling but no stenosis.... \nPLAN/RECOMMENDATIONS: \n1.  A repeat epidural steroid injection versus adjacent level \nfacet block will be considered regarding her right low back \npain.  The L5-S1 facets remain open with respect to \nprevious spinal fusion.  The adjacent level may be the \nmain issue of her pain.  It may be reasonable to repeat a \ncaudal epidural for her foraminal stenosis versus facet \nblocks at the adjacent level below her surgery. \n2.  I am in agreement that she has chronic pain and is best \nserved with a chronic pain physician. \n\nFREEMAN - G803817  13\n  \n \n \n3.  She may also require further evaluation regarding surgical \nmanagement with respect to decompression and \nadvancement of her fusion to the sacrum.   \n \n Dr. Rosenzweig gave the following impression:  “Postlaminectomy \nsyndrome with referred pain down her legs with mixed response to epidural \nsteroids.”   \n The claimant followed up with Dr. Jackson on April 23, 2020:  “She \nhas chronic back pain and takes chronic opioid therapy.  Of course her \ntreatment has been disrupted by the COVID pandemic....This is a chronic \nproblem.  The current episode started more than 1 year ago.”  Dr. Jackson \nassessed “1.  Myofascial pain.  2.  Chronic pain disorder.”  Dr. Jackson \nperformed trigger point injections.   \n Dr. Rosenzweig performed a “Caudal epidural steroid injection #3” \non July 30, 2020.  The post-operative diagnosis was “1.  Disk herniation.  2.  \nPost-laminectomy syndrome.  3.  Posterior spinal fusion.  4.  Right-sided \nradiculitis.” \n Dr. Rosenzweig planned and recommended the following on August \n21, 2020:  “1.  Supportive care will be continued with her pain physician.  2.  \nAn evaluation with a spine surgeon will be considered regarding treatment \noptions.  3.  Epidural steroids do not appear to be an answer regarding long \nterm management from a caudal approach to improve delivery and access.  \nShe is reporting insufficient pain relief.”   \n\nFREEMAN - G803817  14\n  \n \n \n Dr. Rosenzweig corresponded with the claimant’s attorney on \nDecember 15, 2021: \nThis is a letter to confirm that Ms. Freeman had been on \ncontract pain management prior to my initial visit with her from \na work related injury in 2018.  Dr. Donald Pate has been and \ncontinues to be her prescribing physician.  She has had \nmedications prescribed prior to Dr. Pate’s care under the care \nof Dr. Qureshi.  I have not participated in her medical \nmanagement regarding chronic pain.  The pain medication is \na result of an earlier lumbar surgery and chronic pain and not \na result of her work related claim from 2018. \nMs. Freeman continues to have symptoms.  It appears that \nshe was able to return to work after her previous surgery but \nwas limited in what activities she could do.  She claimed a \nnew injury with aggravation of her underlying injury as \npreviously outlined in the medical records. \nThe purpose of this letter is to confirm that Ms. Freeman was \nunder the care of Dr. Donald Pate for medical management \nprior to my visit with her regarding an injury while at work in \n2018.  I have not participated in her pain management.  To my \nknowledge, I have not violated her pain contract.   \n \n A pre-hearing order was filed on March 23, 2022.  The parties \nagreed to litigate the following issues: \n(1) Whether the Claimant is entitled to additional reasonably \nnecessary medical care and related expenses beyond \nNovember 26, 2018, in relation to [her] compensable \nlumbar injury of May 29, 2018, as well as additional \ntemporary total disability benefits for as yet unspecified \ndates, and attorney’s fees in relation to controverted \nindemnity benefits.   \n \nA hearing was held on June 10, 2022.  At that time, the parties’ \ncolloquy indicated that the respondents paid temporary total disability \nbenefits through November 30, 2018.  The claimant contended that she \n\nFREEMAN - G803817  15\n  \n \n \nwas entitled to additional temporary total disability benefits beginning \nDecember 1, 2018 until a date yet to be determined.  The claimant testified \nthat she had not returned to work with any employer.      \nAn administrative law judge filed an opinion on September 7, 2022.  \nThe administrative law judge found that the claimant failed to prove she was \nentitled to additional medical treatment, and that the claimant failed to prove \nshe was entitled to additional temporary total disability benefits.  The \nclaimant appeals to the Full Commission.   \nII.  ADJUDICATION \nA.   Temporary Disability \nTemporary total disability is that period within the healing period in \nwhich the employee suffers a total incapacity to earn wages.  Ark. State \nHwy. Dept. v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1981).  “Healing \nperiod” means “that period for healing of an injury resulting from an \naccident.  Ark. Code Ann. §11-9-102(12)(Repl. 2012).  The healing period \ncontinues until the employee is as far restored as the permanent character \nof her injury will permit, and if the underlying condition causing the disability \nhas become stable and nothing further in the way of treatment will improve \nthat condition, the healing period has ended.  Harvest Foods v. Washam, \n52 Ark. App. 72, 914 S.W.2d 776 (1996).  Whether or not an employee’s \nhealing period has ended is a question of fact for the Commission.  Id. \n\nFREEMAN - G803817  16\n  \n \n \nAn administrative law judge found in the present matter that the \nclaimant “failed to prove that she is entitled to additional temporary total \ndisability benefits from December 1, 2018, through a date yet to be \ndetermined.”  The Full Commission affirms this finding. \nAs we have discussed, the claimant previously underwent low back \nsurgeries in 2010 and 2015.  The claimant testified that she had been \nassigned permanent work restrictions following surgery.  The claimant \nbecame employed with the respondents, Arkansas Department of \nCorrections, in October 2017.  The claimant testified that she worked in the \nrespondent-employer’s file room and mail room.  The claimant testified that \nshe injured her low back on or about May 29, 2018 as a result of heavy \nlifting related to her mail room duties.  The parties stipulated that the \nclaimant sustained “a compensable lumbar injury” on May 29, 2018.  Dr. \nJackson treated the claimant beginning June 7, 2018 and assessed “1.  \nStrain of lumbar region, initial encounter.”  Dr. Jackson took the claimant off \nwork.  Dr. Jackson again assessed “1.  Strain of lumbar region” on June 11, \n2018.  The respondents terminated the claimant’s employment effective \nJune 12, 2018.  The record indicates that the claimant’s termination was \nrelated to alleged misconduct and was not the result of the May 29, 2018 \ncompensable injury.   \n\nFREEMAN - G803817  17\n  \n \n \nDr. Seale provided an Independent Medical Evaluation (IME) on July \n16, 2018.  Dr. Seale recommended injection treatment, and he released the \nclaimant to return to light-duty work.  The claimant participated in a \nFunctional Capacity Evaluation on November 28, 2018.  It was averred as a \nresult of the FCE that the claimant gave “an unreliable effort,” and the \nevaluators released the claimant to return to light work.  The respondents \npaid temporary total disability benefits through November 30, 2018.   \nThe claimant contends in her brief on appeal that she is “Entitled to \nTemporary Disability Benefits Because she is Still within her Healing \nPeriod.”  The Full Commission finds that the claimant reached the end of \nher healing period no later than November 28, 2018.  The evidence \ndemonstrates that the claimant sustained a compensable lumbar strain on \nMay 29, 2018 as assessed by Dr. Jackson.  The claimant was treated \nconservatively for her compensable lumbar strain and was provided \ntemporary total disability benefits.  The claimant was released to light work \nfollowing the November 28, 2018 Functional Capacity Evaluation.  The \nrespondents paid temporary total disability benefits through November 30, \n2018.  Dr. Seale reported on January 28, 2019, “I recommend the patient \nreturn back to work full duty without restrictions and is at maximum medical \nimprovement as of the date of [her] functional capacity exam completion, \n11-28-18 [emphasis supplied].”  The Commission has the authority to \n\nFREEMAN - G803817  18\n  \n \n \naccept or reject medical opinion and the authority to determine its medical \nsoundness and probative force.  Green Bay Packing v. Bartlett, 67 Ark. \nApp. 332, 999 S.W.2d 692 (1999).  In the present matter, the Full \nCommission finds that Dr. Seale’s opinion is corroborated by the record and \nis entitled to significant evidentiary weight.  The Full Commission finds that \nthe claimant reached the end of the healing period for her compensable \nlumbar strain no later than November 28, 2018.  The evidence \ndemonstrates that the claimant was as far restored as the “permanent \ncharacter” of her lumbar strain would permit no later than November 28, \n2018.   \nTemporary total disability benefits cannot be awarded after an \nemployee’s healing period has ended.  Milligan v. West Tree Serv., 57 Ark. \nApp. 14, 946 S.W.2d 697 (1997).   The Full Commission therefore finds that \nthe claimant did not prove she was entitled to additional temporary total \ndisability benefits after November 28, 2018.  Nor did the claimant re-enter a \nhealing period at any time beyond November 28, 2018.  Dr. Rosenzweig’s \nimpression of “1.  Postlaminectomy syndrome” beginning February 27, \n2019 does not indicate that the claimant re-entered a healing period for the \ncompensable lumbar strain occurring May 29, 2018. \n\nFREEMAN - G803817  19\n  \n \n \nThe Full Commission affirms the administrative law judge’s finding in \nthe present matter that the claimant failed to prove she was entitled to \nadditional temporary total disability benefits.         \nB.   Medical Treatment \nThe employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe employee has the burden of proving by a preponderance of the \nevidence that medical treatment is reasonably necessary.  Stone v. Dollar \nGeneral Stores, 91 Ark. App. 260, 209 S.W.3d 445 (2005).  Preponderance \nof the evidence means the evidence having greater weight or convincing \nforce.  Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 \nS.W.3d 252 (2003).  What constitutes reasonably necessary medical \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984).   \nAn administrative law judge found in the present matter, “(2)  The \nClaimant has failed to prove, by a preponderance of the evidence, that she \nis entitled to additional reasonably necessary medical care in relation to her \ncompensable injury of May 29, 2018[.]”  The Full Commission finds that the \nclaimant did not prove additional medical treatment was reasonably \nnecessary in connection with the compensable injury.   \n\nFREEMAN - G803817  20\n  \n \n \nThe parties stipulated that the claimant sustained “a compensable \nlumbar injury” on May 29, 2018.  Dr. Jackson assessed “Strain of lumbar \nregion” on June 7, 2018.  Dr. Jackson and Dr. Seale treated the claimant \nconservatively.  The record indicates that the claimant received at least \nthree lumbar injections from which she reported minimal benefit.  Dr. Seale \nopined on January 28, 2019, “Patient is at maximum medical improvement \nfrom a Worker’s Comp. standpoint.”   \nThe Full Commission has determined supra that the claimant \nreached the end of her healing period no later than November 28, 2018.  \nThe Full Commission recognizes that an employee may receive additional \nmedical treatment after the end of her healing period, if said treatment is \ngeared toward management of the compensable injury.  Patchell v. Wal-\nMart Stores, Inc., 86 Ark. App. 230, 184 S.W.3d 31 (2004).  In the present \nmatter, however, the Full Commission finds that additional medical \ntreatment beyond November 28, 2018 was not geared toward management \nof the compensable injury.  The evidence does not demonstrate that \ntreatment provided the claimant after November 28, 2018 was reasonably \nnecessary in connection with the compensable lumbar strain occurring May \n29, 2018.     \nThe record contains a Change of Physician Order dated February \n14, 2019, approving a change of physician from Dr. Seale to Dr. \n\nFREEMAN - G803817  21\n  \n \n \nRosenzweig.  When a claimant has exercised her statutory right to a one-\ntime change of physician, the respondents must pay for the initial visit to the \nnew physician in order to fulfill their obligation to provide reasonably \nnecessary medical treatment in accordance with Ark. Code Ann. §11-9-508.  \nWal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d 153 (2003).  \nIn the present matter, therefore, if they have not done so, the respondents \nmust pay for the claimant’s initial visit with Dr. Rosenzweig which took place \non February 27, 2019. \nNevertheless, the record does not show that treatment or \nrecommendations provided by Dr. Rosenzweig after February 27, 2019 \nwere reasonably necessary in connection with the May 29, 2018 \ncompensable injury.  Dr. Rosenzweig’s diagnoses of postlaminectomy \nsyndrome, spinal stenosis, and chronic back pain were not causally related \nto the compensable injury suffered by the claimant on May 29, 2018.  Dr. \nRosenzweig answered a query on July 12, 2019 and indicated that the \nclaimant’s work injury was “the major cause” of the claimant’s need for \ntreatment.  It is within the Commission’s province to weigh all of the medical \nevidence and to determine what is most credible.  In the present matter, the \nFull Commission finds that Dr. Rosenzweig’s causation opinion is entitled to \nminimal evidentiary weight.  The record does not show that treatment \nprovided by Dr. Rosenzweig was causally related to the May 29, 2018 \n\nFREEMAN - G803817  22\n  \n \n \ncompensable injury, which injury resolved no later than November 28, 2018 \naccording to Dr. Seale.  The Full Commission finds that Dr. Seale’s opinion \nis corroborated by the record and is entitled to more evidentiary weight than \nDr. Rosenzweig’s opinion.  The record does not show that \n“Postlaminectomy syndrome” as diagnosed by Dr. Rosenzweig was \ncausally related to the compensable lumbar strain.   \nAfter reviewing the entire record de novo, the Full Commission \naffirms the administrative law judge’s finding that the claimant did not prove \nshe was entitled to additional temporary total disability benefits.  The Full \nCommission finds that the claimant did not prove she was entitled to \nadditional temporary total disability benefits after the end of the claimant’s \nhealing period on November 28, 2018.  If they have not done so, the \nrespondents must pay for the claimant’s initial visit with Dr. Rosenzweig \nwhich took place on February 27, 2019.  Wal-Mart Stores, Inc. v. Brown, \nsupra.  However, the claimant did not prove that any of Dr. Rosenzweig’s \ntreatment recommendations following February 27, 2019 were reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nThe claimant therefore did not prove she was entitled to additional medical \ntreatment after February 27, 2019.  This claim is respectfully denied and \ndismissed. \n \n\nFREEMAN - G803817  23\n  \n \n \nIT IS SO ORDERED     \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner \n \n \n \nCommissioner Willhite concurs and dissents. \nCONCURRING AND DISSENTING OPINION \n After my de novo review of the entire record, I concur in part with but \nmust respectfully dissent in part from the majority opinion.  I concur with the \nmajority’s finding that the claimant did not prove she was entitled to \nadditional temporary total disability benefits after the end of her healing \nperiod on November 28, 2018.  However, I must dissent from the majority \nopinion finding that the claimant failed to prove she was entitled to \nadditional medical treatment.   \n An employer shall promptly provide for an injured employee such \nmedical treatment as may be reasonably necessary in connection with the \ninjury received by the employee.  Ark. Code Ann. §11-9-508(a).  The \nclaimant bears the burden of proving that she is entitled to additional \nmedical treatment.  Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 \nS.W.2d 543 (1999).  What constitutes reasonably necessary medical \n\nFREEMAN - G803817  24\n  \n \n \ntreatment is a question of fact for the Commission.  Wright Contracting Co. \nv. Randall, 12 Ark. App. 358, 676 S.W.2d 750 (1984). \n I find that the surgical intervention recommended by Dr. Seale is \nreasonably necessary.  During the claimant’s August 20, 2018, visit, Dr. \nJustin Seale recommended that the claimant undergo a L4-S1 fusion.  Dr. \nSeale noted, “I do believe the surgical intervention may be the only way to \ngive her long-term relief of the pain”.  However, the claimant did not want \nsurgery at that time.  I find nothing within the record that would negate the \nnecessity of this surgery. \n The claimant exercised her right to a one-time change of physician \nand began receiving treatment from Dr. Kenneth Rosenzweig.  Once the \nclaimant began treating with Dr. Rosenzweig, he opined that the claimant’s \nwork injury was the major cause of the current need for treatment and \ncurrent restrictions.  The claimant expressed a desire to Dr. Rosenzweig to \npursue surgical intervention.  However, when Dr. Rosenzweig attempted to \nrefer the claimant to Dr. Tim Burson for a surgical consult, the respondents \nrefused to authorize the referral.  In his November 21, 2019, and August 21, \n2020, medical records, Dr. Rosenzweig continued to recommend that the \nclaimant be evaluated by a spine surgeon regarding further treatment \noptions. \n\nFREEMAN - G803817  25\n  \n \n \n Additionally, the need for surgery was causally connected to the \nclaimant’s work injury.  Dr. Seale opined that the pain in the claimant’s right \nleg did not pre-exist her injury.  “Therefore it is within a certain [sic] degree \nof medical certainty that at least 51% of the patient’s current symptoms are \ndirectly related to [her] work injury.” \n Based on the aforementioned, I find that the claimant has \nestablished by a preponderance of the evidence that she is entitled to \nadditional medical treatment as recommended by Dr. Seale and Dr. \nRosenzweig, as well as all the treatment provided by Dr. Rosenzweig. \n For the foregoing reasons, I concur in part and dissent in part from \nthe majority opinion. \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G803817 JACQUELINE D. FREEMAN, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF CORRECTIONS, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA DEATH & PERMANENT TOTAL DISABILITY TRUST FUND","fetched_at":"2026-05-19T22:29:46.562Z","links":{"html":"/opinions/full_commission-G803817-2023-03-24","pdf":"https://labor.arkansas.gov/wp-content/uploads/Freeman_Jacqueline_G803817_20230324.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}