{"id":"full_commission-G804085-2023-06-22","awcc_number":"G804085","decision_date":"2023-06-22","opinion_type":"full_commission","claimant_name":"Lisa Sowell","employer_name":"Evergreen Packaging, LLC","title":"SOWELL VS. EVERGREEN PACKAGING, LLC AWCC# G804085 JUNE 22, 2023","outcome":"denied","outcome_keywords":["granted:1","denied:3"],"injury_keywords":["back","lumbar","cervical","neck","hip","strain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Sowell_Lisa_G804085_20230622.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Sowell_Lisa_G804085_20230622.pdf","text_length":32580,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  G804085 \n \nLISA SOWELL, \nEMPLOYEE \n \nCLAIMANT \nEVERGREEN PACKAGING, LLC,  \nEMPLOYER \n \nRESPONDENT \nACE AMERICAN INSURANCE COMPANY/ \nGALLAGHER BASSETT SERVICES, INC., \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED JUNE 22, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE LARRY J. STEELE, Attorney at \nLaw, Walnut Ridge, Arkansas. \n \nRespondents represented by the HONORABLE WILLIAM C. FRYE, \nAttorney at Law, North Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed as Modified. \n \n \n OPINION AND ORDER \nThe claimant appeals an administrative law judge’s opinion filed \nJanuary 10, 2023.  The administrative law judge found that the Arkansas \nWorkers’ Compensation Act was constitutional.  The administrative law \njudge found that the claimant failed to prove she was entitled to additional \nmedical treatment, and that the claimant failed to prove she was \npermanently totally disabled.  After reviewing the entire record de novo, the \nFull Commission finds that the claimant’s statutory change of physician has \nbeen nullified, so that the claimant is entitled to another change of \nphysician.  We find that the claimant did not prove she was permanently \n\nSOWELL - G804085  2\n  \n \n \ntotally disabled.  The claimant did not prove that the Arkansas Workers’ \nCompensation Act was unconstitutional.     \nI.  HISTORY \n Lisa Michelle Sowell, now age 56, testified that she attended college \nfor one year after graduating from high school.  Ms. Sowell testified that she \nwas subsequently employed with Tyson Foods for 17 years.  The claimant \ntestified that she also worked for Century Tube, in housekeeping, for \napproximately five years.   \nThe claimant testified that she became employed with the \nrespondents, then known as International Paper, on or about September \n15, 2003.  The claimant testified that she worked for the respondents as a \n“Processor,” which duties required unloading railcars and cleaning.  After \nseveral years of this employment, the claimant began unloading “clamp \ntrucks” for the respondents.  The claimant testified that she became a \nService Operator for the respondents in 2018.          \nThe parties stipulated that the claimant “sustained a compensable \ninjury to her low back” on or about May 31, 2018.  The claimant testified \nthat she slipped on a set of stairs in the workplace and fell.  According to \nthe record, an MRI of the claimant’s lumbar spine was taken on June 15, \n2018 with the impression, “Left neural foraminal zone disc protrusions at \nL3-L4 and L4-L5 without neural foraminal narrowing.” \n\nSOWELL - G804085  3\n  \n \n \nDr. Timothee Wilkin noted on July 2, 2018, “Patient here today for f/u \non fall at work approx. 6/2.  She had back pain, was seen at JRMC ER, \nthen followed up at our clinic following that.  Patient reports that she has not \nbeen back to work due to too many restrictions.”  Dr. Wilkin assessed \n“Cervical pain,” “Prolapse of lumbar intervertebral disc without \nradiculopathy,” and “Low back pain.”  Dr. Wilkin advised the claimant to \nfollow up with Dr. Victor Vargas, and he stated, “There is no way to connect \nneck pain to her fall on 6/2.”     \nDr. Vargas provided an Initial Evaluation on July 9, 2018: \nMs. Sowell is a 51 year old female who presents to my clinic \nfor the first time.  The patient has been referred by the \nWorker’s Comp carrier to have an evaluation of the back pain \nand hip pain.   \nThe patient claimed having an injury when she fell down \nstairs.   \nShe presents with pain and numbness on the left side.  She \nstates that the symptoms have been acute traumatic and \nbegan 4 to 5 weeks ago.  She indicates the injury occurred at \nwork.  She is on Worker’s Comp.  The accident occurred on \n05/31/2018....The patient indicates that the pain is located in \nthe lower back on the left side.... \nShe has returned to work with limitations.  The patient brought \nMRI report of lumbar spine that showed left neuroforaminal \nsound disc protrusion at L3-L4 and L4-L5 without neural \nimpingement.  No evidence of fractures.  No actual images \nare available.... \n \n Dr. Vargas assessed “Low back pain.  Contusion of the lower back.  \nPossible strain of the lower back.  The patient also had numbness of \nunknown origin.  Degenerative changes at L3 L4, L4 L5 with foraminal \n\nSOWELL - G804085  4\n  \n \n \nnarrowing without evidence of neural impingement.  No focal disc herniation \nor acute events.”   \n Dr. Vargas’ treatment plan on July 9, 2018 included physical therapy \nand medication.  Dr. Vargas stated, “Patient will be on light duty with no \nlifting or pushing more than 5 pounds and no lifting over.”  The claimant \ntestified on direct examination: \nQ.  Did you ask for an accommodation from Evergreen?  Did \nyou write a letter asking them to give you a job that you could \ndo? \nA.  Yes, I did.   \nQ.  And did they give you a job? \nA.  No, they didn’t.   \n \n The claimant was provided physical therapy visits beginning July 13, \n2018.  The claimant testified on cross-examination that she did not benefit \nfrom physical therapy.     \n The claimant followed up with Dr. Vargas on August 6, 2018:  “I have \nreviewed the report from physical therapy (10 15 sessions) that showed that \nshe has improvement of the constant cramping and tightness of the lower \nback and mid lower back, continues complaining of low back pain and \nbuttock pain....Patient brought MRI of the lumbar spine dated June 15, \n2018 and had reviewed the images.  Essentially what the radiologist \ndescribed.  The patient had multilevel degeneration of the disks which is \nmild with some mild protrusion at different levels were assessed to be more \npronounced at L4 L5 with some mild foraminal narrowing but no \n\nSOWELL - G804085  5\n  \n \n \nneurological compromise.  There is also facet arthropathy L4 L5 with some \nmild effusion on the right side secondary to degenerative osteoarthritis of \nthe joint.  Definitely no evidence of fractures, anterolisthesis or \nspondylolisthesis, no focal disc herniation.”   \n Dr. Vargas’ treatment plan on August 6, 2018 included continued \nconservative modalities, additional diagnostic testing, and light work duty.  \nDr. Brent Sprinkle performed electrodiagnostic testing on August 23, 2018 \nand gave the following interpretation:  “No electrodiagnostic evidence of a \nlumbar radiculopathy, peripheral neuropathy, or focal tibial or peroneal \nnerve entrapment is seen in the extremity tested today.  Additional L2-3 \nmuscles were screened and were normal due to thigh complaints, no focal \nlateral femoral cutaneous sensory loss was seen on physical exam.”   \n Dr. Brent Walker performed lumbar injections on September 18, \n2018.  The claimant testified regarding Dr. Walker’s treatment, “I felt good \nfor about seven days.  Then I started feeling the pain coming back after that \nseven days.”     \n Dr. Vargas reported on October 4, 2018: \nThe patient has been treated for 4 months with different \nmodalities for the low back pain without specific objective \nfinding of injury to the lumbar spine.   \nAt this point I am considering that the patient has exhausted \nthe conservative treatment for her lower back pain and the \npatient has reached maximum medical improvement and is \ntoday.   \n\nSOWELL - G804085  6\n  \n \n \nThe patient will be released to work full duty but she stated \nthat she is unable to work therefore in order to have objective \nfindings and recommended to have functional capacity \nevaluation.... \nThe patient is entitled to 0% permanent impairment in regards \nof her lower back pain.... \n \n The claimant participated in a Functional Capacity Evaluation on \nOctober 15, 2018:  “The results of this evaluation indicate that an unreliable \neffort was put forth, with 14 of 50 consistency measures within expected \nlimits....Ms. Sowell completed functional testing on this date with unreliable \nresults.  Overall, Ms. Sowell demonstrated the ability to perform work in at \nleast the SEDENTARY classification of work[.]”   \n Dr. Vargas noted on October 22, 2018: \nThe functional capacity evaluation was requested for the \npurpose to understand patient’s limitation for work. \nThe functional capacity evaluation was reported with \nunreliable results.  The results indicated that unreliable effort \nwas put forth with inconsistencies found on 14 out of 50 \nmeasurements.  This indicates that the patient did not put \nconsistent effort.   \nConsequently, the actual functional capacity of the patient is \nunknown and her actual abilities could be higher than the \ndemonstrated at the tests. \nTherefore, I am considering that the patient can work on full \nduty without restrictions.   \n \n The claimant was deposed on February 11, 2019.  At that time, the \nclaimant testified that she had previously worked as a Service Operator for \nthe respondents for approximately four years.  The claimant testified that \nthe Service Operator position included a variety of work responsibilities, \n\nSOWELL - G804085  7\n  \n \n \nincluding the “extruder wrap line” job.  The claimant testified that “extruder” \nwork was physically difficult.  The claimant testified that she had not treated \nwith a physician since Dr. Vargas’ release in October 2018.  The \nrespondents’ attorney examined the claimant: \n  Q.  What are you going to do next as far as a job? \nA.  I mean, hurting like I do, I don’t think I’m going to be able \nto do another job.  So the only thing I can do is to try to apply \nfor my disability.   \nQ.  So you’re planning on filing for Social Security? \nA.  Right, I mean yes.... \nQ.  Would you be able to drive to work if there was a light duty \njob? \nA.  Yes, I could drive that far.   \nQ.  Well, if you had to get up and file all day, do you think you \ncould do that on your feet? \nA.  Well, see, that wouldn’t be constantly because I could file, \nyou know, sitting down and I could stand a little bit, you know, \nrotate it out if I started hurting.   \n \n The record contains a Change of Physician Order dated June 7, \n2019:  “A change of physician is hereby approved by the Arkansas \nWorkers’ Compensation Commission for Lisa Sowell to change from Dr. \nVictor Vargas to Dr. Noojan Kazemi[.]” \n Stephanie Whaley, a Certified Case Manager, corresponded with the \nrespondents’ attorney and several other individuals on July 31, 2019: \nI wanted to let you know Dr. Kazemi’s office canceled Ms. \nSowell’s appointment for this morning due to an out of date \nMRI.  I was told Ms. Sowell would reschedule once the MRI \nhad been done.  I reached out to the claimant attorney on file, \nLaura Beth York, who informed she was no longer \nrepresenting Ms. Sowell and had closed her file in March.  I \nhave not contacted Ms. Sowell as Karen Cates advised no \n\nSOWELL - G804085  8\n  \n \n \ncontact back in January.  Would you like me to reach out to \nher to see if she would even speak with me?  Thanks so \nmuch! \n \n On August 5, 2019, the respondents’ attorney corresponded with \ncounsel for the Commission’s Medical Cost Containment Division:  “Eli:  \nYou set up the change of physician with Dr. Kazemi.  He cancelled the \nappointment and said he would not see the claimant without another MRI.  \nWe are not going to authorize the another (sic) MRI as being reasonable \nand necessary.  I don’t believe we are required to pay for diagnostic studies \nas part of the first time visit.  We did provide Dr. Kazemi with the first MRI \nwhich we paid for as part of the work up on the claimant.” \n   On August 26, 2019, the claimant filed a COMPLAINT in the United \nStates District Court for the Eastern District of Arkansas, Pine Bluff Division.  \nThe claimant contended that the respondents had discriminated against her \nunder the Americans with Disabilities Act and the Arkansas Civil Rights Act \nof 1993.   \n An MRI was performed at Jefferson Regional Medical Center on \nSeptember 18, 2019 and was compared with the MRI taken June 15, 2018.  \nThe following impression resulted:  “1.  No compression fractures.  2.  Mild \ndegenerative disc disease at L3-4 and L4-5.  No spinal canal or neural \nforaminal narrowing at any level.” \n The claimant testified on direct examination: \n\nSOWELL - G804085  9\n  \n \n \nQ.  And what caused you to have an MRI at Jefferson \nRegional Medical Center in 2019, a month before the \naccident, auto accident? \nA.  It was for Social Security.   \n \n Dr. Jason Smith reported on or about September 19, 2019: \nThis is a 52 year old Female patient.  The patient returns \nhaving had MRI scan of the lumbar and cervical spine.  The \ncervical spine shows multilevel degenerative disc disease, but \nno significant central canal stenosis or foraminal narrowing.  \nThe lumbar spine actually looks fairly benign.  There is a left \nintraforaminal disc bulge at L3-4 which does correlate with her \nleft anterior thigh pain, but it only causes minimal stenosis, \nand no obvious neural compression.... \nUnfortunately, I do not have much to offer her.  I \nrecommended that she look into joining the aquatics facility \nand start walking in water and doing water aerobics.  This \nmay help her.  I talked with her about considering bariatric \nsurgery.  I told her I think she should check it out online, and if \nshe is interested to discuss it with her primary care physician.  \nShe will follow up with me on an as needed basis.   \n \n Dr. Smith diagnosed “1.  Cervical spondylosis” and “2.  Lumbar \nradiculopathy, chronic.”     \n On November 11, 2019, the claimant received emergency medical \ntreatment after a motor vehicle accident.  The discharge diagnosis was \n“MVC (motor vehicle collision):  Strain of lumbar region.”  An x-ray of the \nclaimant’s lumbar spine was taken on November 11, 2019 with the \nimpression, “1.  Unremarkable radiographic evaluation of the lumbar spine.”   \n The claimant received a series of visits at Liberty Chiropractic \nbeginning December 13, 2019.  The claimant presented to Pain Treatment \n\nSOWELL - G804085  10\n  \n \n \nCenters of America on March 5, 2020, at which time Dr. Sameer Jain \nperformed a lumbar medial branch block.     \nThe claimant was deposed on May 13, 2020 pursuant to the \nclaimant’s complaint filed in the United States District Court.  An attorney \nexamined the claimant: \nQ.  And since you have left Evergreen, you have not worked \nanywhere? \n A.  No. \n Q.  Have you applied to work anywhere? \n A.  No. \nQ.  Did you ever contact any other employers to ask about \njobs? \n A.  No.   \nQ.  Did you – and why have you not sought other \nemployment? \nA.  Because, I mean, it’s – who would hire me?  I can’t do \nanything.  I mean, it’s – everything I do is limited, everything.  \nAnd if I would go for another job, I mean, they are not going to \naccept me the way I am.   \nQ.  What about a desk job, have you applied for any of those? \nA.  No.   \nQ.  And why not? \nA.  Because of a desk job you are still going to have to be \nwalking, standing.  You are going to have to do lifting.  I can’t \ndo all of that.   \nQ.  Okay.  So you can’t even do a desk job.  Is that what you \nare telling me? \nA.  No. \nQ.  No, you can’t? \nA.  No, ma’am.   \nQ.  Have you applied for disability? \nA.  Yes, ma’am. \nQ.  Social Security disability? \nA.  Yes, ma’am.   \nQ.  And have you been accepted? \nA.  Not yet.   \nQ.  When did you apply? \n\nSOWELL - G804085  11\n  \n \n \nA.  It was last year.  I think it was in May of last year.   \n \n Eli Singer, Staff Attorney, Medical Cost Containment Division, \ncorresponded with the parties on June 25, 2020: \nWe received a request from the claimant’s attorney, Mr. \nSteele, in the above-referenced claim for a copy of MCCD’s \nnotes regarding the Change of Physician request processed \nin the Summer of 2019 and an email from the respondent \nattorney, Mr. Frye, expressing that the respondents would not \nauthorize another MRI.  The COP notes are attached.  The \nemail is below.   \n \n The respondents’ attorney subsequently informed Eli Singer on June \n25, 2020, “I got a call from Stephanie Whaley who was the case manager \nthat the doctor would not see the claimant without MRI.  The appointment \nwas cancelled by us but not by the clinic.  I then contacted the \nCommission.”     \nThe parties deposed Dr. Vargas on April 2, 2021.  The claimant’s \nattorney examined Dr. Vargas in part: \nQ.  Do you agree that a functional capacity exam can neither \nprove nor disprove claims of disability, pain, nor do they \nnecessarily present a true picture?  For example, in cases of \nfibromyalgia, when symptoms are known to wax and wane? \nA.  The functional capacity evaluation is used to determine if \nthe patient can return to work and what kind of ability the \npatient can do.  And that’s why we use the FCE, and that is a \nstandard test to provide reliability. \n \n A pre-hearing order was filed on August 3, 2022.  The claimant \ncontended, “Claimant, employee, Lisa Sowell contends she is permanently \ntotally disabled due to lack of care and treatment which was denied by \n\nSOWELL - G804085  12\n  \n \n \nEvergreen Packaging and Ace American Ins. Co./ESIS, Inc. under the \nArkansas Workers’ Compensation law for a work-related injury, falling down \nstairs at work.”   \n The respondents contended, “The Claimant sustained a \ncompensable back injury.  She was treated by Dr. Vargas.  The Claimant \nunderwent numerous diagnostic studies with (sic) were normal.  The \nClaimant underwent a (sic) FCE and only passed 14 of 50 test (sic) and the \nresult were (sic) unreliable.  The Claimant was then released by Dr. Vargas \nwithout restrictions and no impairment.  The Claimant then requested a \nchange of physician to Dr. Kazemi.  Dr. Kazemi refused to see the Claimant \nwithout a new MRI.  The Respondents refused to order a second MRI.  The \nchange of physician requirements are that the Respondents do not have to \npay for additional studies as part of the first exam.  Dr. Vargas also testified \nthat the Claimant did not need another MRI.  Subsequent to this, the \nClaimant was involved in a motor vehicle accident and injured her low back.  \nShe settled this case for $25,000.00.  The deposition of the treating \nphysician Dr. Vargas by Claimant’s counsel.  Dr. Vargas testified that the \nclaimant had degenerative changes.  He testified on impairment that he \nfound no objective finding of any injury.  He also said he released the \nClaimant with no restrictions due to invalid FCE.  The Claimant has also \nlisted violations of the 14th Amendment to the Constitution.  The contention \n\nSOWELL - G804085  13\n  \n \n \nis outside the jurisdiction of the Commission.  The Claimant has also not \nlisted any relief sought for this violation.”   \n The parties agreed to litigate the following issues: \n1.  Whether the Arkansas Workers’ Compensation Act is \nunconstitutional due to denial of due process and equal \nprotection under the 14\nth\n Amendment of the United States \nConstitution because the Claimant was denied an updated \nMRI and was, thus, was unable to treat with her choice of \nphysician.   \n2.  Whether the Claimant is entitled to additional medical \ntreatment (including medication and physical therapy) for \nher compensable low back injury.   \n3.  Whether the claimant is entitled to permanent total \ndisability benefits.   \n4.  Attorney’s fee.   \n \nAfter a hearing, an administrative law judge filed an opinion on \nJanuary 10, 2023.  The administrative law judge found, among other things, \nthat the Arkansas Workers’ Compensation Act was constitutional.  The \nadministrative law judge found that the claimant did not prove she was \nentitled to additional medical treatment, and that the claimant did not prove \nshe was permanently totally disabled.  The claimant appeals to the Full \nCommission. \nII.  ADJUDICATION \nA.   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).  \n\nSOWELL - G804085  14\n  \n \n \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 (2002).  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, “5.  That the \nclaimant has failed to satisfy the required burden of proof to show that she \nis entitled to an additional medical treatment, specifically an additional MRI \nand physical therapy.”  Based on the current record, the Full Commission \nfinds that the claimant did not prove additional medical treatment or \nadditional diagnostic testing was reasonably necessary in accordance with \nArk. Code Ann. §11-9-508(a)(Repl. 2012).  However, we find that the \nclaimant proved she was entitled to another change of physician request.   \nThe parties stipulated that the claimant “sustained a compensable \ninjury to her low back” on or about May 31, 2018.  The record does not \nshow that the claimant sustained a compensable injury to any anatomic \nregion other than her low back.  An MRI of the claimant’s lumbar spine on \nJune 15, 2018 indicated that there were “foraminal zone disc protrusions” at \n\nSOWELL - G804085  15\n  \n \n \nL3-L4 and L4-L5.  No examining or treating physician has opined that the \nclaimant is a candidate for surgery as a result of her compensable injury.  \nDr. Wilkin assessed “Low back pain” on July 2, 2018 and referred the \nclaimant to Dr. Vargas.  Dr. Vargas began treating the claimant \nconservatively on July 9, 2018.  Dr. Vargas specifically recommended \nphysical therapy and medication.  The claimant was provided physical \ntherapy visits beginning July 13, 2018, but the claimant testified that she \nreceived no benefit from physical therapy.  Dr. Walker performed injection \ntreatment on September 18, 2018, but the claimant testified that she \nreceived only temporary relief from Dr. Walker’s treatment.  Dr. Vargas \nopined on October 4, 2018 that the claimant had reached maximum \nmedical improvement.   \nThe Full Commission recognizes that an employee may be entitled \nto reasonably necessary medical treatment after the end of her healing \nperiod.  Patchell v. Wal-Mart Stores, Inc., 86 Ark. App. 230, 184 S.W.2d 31 \n(2004).  In the present matter, there are currently no recommendations for \nadditional medical treatment which could be interpreted as being causally \nrelated to the May 31, 2018 compensable injury.   \nAs we have noted, however, the record contains a Change of \nPhysician Order dated June 7, 2019:  “A change of physician is hereby \napproved by the Arkansas Workers’ Compensation Commission for Lisa \n\nSOWELL - G804085  16\n  \n \n \nSowell to change from Dr. Victor Vargas to Dr. Noozan Kazemi[.]”  A case \nmanager notified the respondents’ attorney on July 31, 2019, “I wanted to \nlet you know Dr. Kazemi’s office canceled Ms. Sowell’s appointment for this \nmorning due to an out of date MRI.  I was told Ms. Sowell would reschedule \nonce the MRI had been done.”  The respondents’ attorney informed the \nCommission’s Medical Cost Containment Division on August 5, 2019 that \nthe respondents would not authorize another MRI before the claimant saw \nDr. Kazemi.  The claimant was therefore not able to see or treat with Dr. \nKazemi, because of Dr. Kazemi’s apparent unwillingness to examine the \nclaimant before additional diagnostic was performed.     \nThe employer has the right to select the initial treating physician.  \nArk. Code Ann. §11-9-514(a)(3)(A)(i)(Repl. 2012).  An employee may \nrequest a one-time change of physician.  Ark. Code Ann. §11-9-\n514(a)(2)(A)(Repl. 2012).  When a claimant seeks a change of physician, \nshe must petition the Commission for approval.  Stephenson v. Tyson \nFoods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000).  When an employee \nhas exercised her absolute, statutory right to a one-time change of \nphysician, the respondents must pay for the initial visit to the new physician \nin order to fulfill their obligation to provide reasonably necessary medical \ntreatment.  Wal-Mart Stores, Inc. v. Brown, 82 Ark. App. 600, 120 S.W.3d \n153 (2003).  Nevertheless, the Full Commission is unaware of any statutory \n\nSOWELL - G804085  17\n  \n \n \nauthority or appellate precedent which requires a respondent to authorize \ndiagnostic testing before an employee sees the new physician. \nBecause Dr. Kazemi refused to visit the claimant without a new MRI, \nthe Full Commission finds in the present matter that the claimant’s change \nof physician request was essentially nullified.  We therefore find that the \nclaimant is entitled to another statutory change of physician request.  See \nWal-Mart Associates, Inc. v. Keys, 2012 Ark. App. 559, 423 S.W.3d 683.  If \nthe claimant still desires a statutory change of physician, then we direct her \nto promptly contact the Commission’s Medical Cost Containment Division.  \nThe respondents will be liable for at least the initial visit with the new \nphysician but shall not be required to authorize treatment or diagnostic \ntesting before the claimant sees the physician.    \nB.   Permanent Total Disability \nArk. Code Ann. §11-9-519(Repl. 2012) provides, in pertinent part: \n(e)(1)  “Permanent total disability” means inability, because of \ncompensable injury or occupational disease, to earn any \nmeaningful wages in the same or other employment.   \n(2)  The burden of proof shall be on the employee to prove \ninability to earn any meaningful wages in the same or other \nemployment.   \n \n An administrative law judge found in the present matter, “5.  That the \nclaimant has failed to satisfy the required burden of proof to show that she \nis entitled to permanent total disability benefits.”  The Full Commission \naffirms this finding.  The claimant, age 56, is advancing in age but is not \n\nSOWELL - G804085  18\n  \n \n \nelderly.  The claimant attended college for one year following high school.  \nThe claimant has a varied and stable work history, being previously \nemployed at Tyson for 17 years and Century Tube for five years.  The \nclaimant became employed with the respondents in 2003.  The claimant \nworked in several different positions for the respondents over the years, \nand the claimant’s testimony indicated that her employment with the \nrespondents occasionally required manual labor.   \n The parties stipulated that the claimant sustained a compensable \ninjury to her low back on May 31, 2018.  The claimant slipped and fell on a \nset of stairs in the workplace.  An MRI taken June 15, 2018 showed lumbar \nprotrusions, but the claimant has never been a candidate for surgery.  The \nrecord indicates that the claimant chose not to return to work for the \nrespondents following the compensable injury.  After several months of \nappropriate conservative treatment, Dr. Vargas released the claimant to full \nduty with 0% permanent anatomical impairment on October 4, 2018.  The \nclaimant gave “unreliable effort” during a Functional Capacity Evaluation on \nOctober 15, 2018.  It was concluded, “Overall, Ms. Sowell demonstrated the \nability to perform work in at least the SEDENTARY classification of work[.]”  \nThe Arkansas Workers’ Compensation Commission is not bound by \ntechnical rules of evidence but is directed to conduct the hearing “in a \nmanner as will best ascertain the rights of the parties.”  Ark. Code Ann. §11-\n\nSOWELL - G804085  19\n  \n \n \n9-705(a)(Repl. 2012); Clark v. Peabody Testing Servs., 265 Ark. 489, 579 \nS.W.2d 360 (1979).  The Commission should be more liberal with the \nadmission of evidence rather than more stringent.  Bryant v. Staffmark, Inc., \n76 Ark. App. 64, 61 S.W.3d 856 (2001). \n The Full Commission finds in the present matter that the results of \nthe Functional Capacity Evaluation are relevant and are fully admissible into \nthe record for adjudication.  See Bryant, supra.  It was concluded following \nthe Functional Capacity Evaluation on October 15, 2018 that the claimant \ncould return to at least “Sedentary” employment.  Dr. Vargas reviewed the \nFunctional Capacity Evaluation and opined on October 22, 2018, “I am \nconsidering that the patient can work on full duty without restrictions.”  The \nCommission has the authority to accept or reject a medical opinion and the \nauthority to determine its probative value.  Poulan Weed Eater v. Marshall, \n79 Ark. App. 129, 84 S.W.3d 878 (2002).  In the present matter, there are \nno medical opinions of record contradicting Dr. Vargas’ conclusion that the \nclaimant is able to return to full work duties.  The Commission finds that Dr. \nVargas’ opinion is supported by the record and is entitled to significant \nevidentiary weight.          \nIn workers’ compensation cases, the Commission functions as the \ntrier of fact.  Blevins v. Safeway Stores, 25 Ark. App. 297, 757 S.W.2d 569 \n(1988).  The Commission is not required to believe the testimony of the \n\nSOWELL - G804085  20\n  \n \n \nclaimant or any other witness but may accept and translate into findings of \nfact only those portions of the testimony it deems worthy of belief.  Farmers \nCo-op v. Biles, 77 Ark. App. 1, 69 S.W.3d 899 (2002).  The Full \nCommission also has the duty to decide the case de novo and we are not \nbound by the characterization of evidence adopted by an administrative law \njudge.  Tyson Foods, Inc. v. Watkins, 31 Ark. App. 230, 792 S.W.2d 348 \n(1990). \nIn the present matter, with regard to her ability to return to \nappropriate gainful employment, the Full Commission finds that the \nclaimant was not a credible witness.  Following the Functional Capacity \nEvaluation in which it was concluded that the claimant could perform at \nleast “sedentary” work, Dr. Vargas released the claimant to “full duty without \nrestrictions.”  The record shows, however, that the claimant did not attempt \nto return to appropriate work with the respondents or any other employer.  \nIn her deposition taken May 13, 2020, the claimant admitted that she had \nnot applied for work with any employer.  The evidence of record does not \ncorroborate the claimant’s testimony that she was physically unable to \nperform even “desk work.”  The claimant’s demonstrated lack of interest in \nreturning to work is an impediment to a full assessment of the claimant’s \ncontention that she is permanently and totally disabled.  Oller v. Champion \nParts Rebuilders, 5 Ark. App. 307, 635 S.W.2d 276 (1982).  The claimant \n\nSOWELL - G804085  21\n  \n \n \ndid not prove by a preponderance of the evidence that she was \npermanently and totally disabled as a result of her compensable injury.   \nAfter reviewing the entire record de novo, the Full Commission finds \nthat the claimant did not prove additional medical treatment was reasonably \nnecessary in accordance with Ark. Code Ann. §11-9-508(a)(Repl. 2012).  \nHowever, the Full Commission finds that Change of Physician Order dated \nJune 7, 2019 has been rendered void due to Dr. Kazemi’s unwillingness to \nexamine the claimant prior to additional diagnostic testing.  We therefore \nfind that the claimant proved she is entitled to another change of physician \nif the claimant requests same.  See Wal-Mart Associates, Inc. v. Keys, \nsupra.  In the event of another change of physician, the respondents must \npay for at least the initial visit with the new physician.  See Wal-Mart Stores, \nInc. v. Brown, supra.  The Full Commission finds that the claimant did not \nprove she was permanently and totally disabled as a result of her \ncompensable injury.  The claimant did not prove that the Workers’ \nCompensation Act, specifically Act 796 of 1993, is violative of any federal \nConstitutional provision or applicable amendment to same.  Woods v. \nTyson Poultry, Inc., 2018 Ark. App. 186, 547 S.W.3d 456, citing Hopkins v. \nHarness Roofing, Inc., 2015 Ark. App. 62, 454 S.W.3d 751.  See also \nStrother v. Lacroix Optical, 2013 Ark. App. 719; Long v. Wal-Mart Stores, \nInc., 98 Ark. App. 70, 250 S.W.3d 263 (2007).   \n\nSOWELL - G804085  22\n  \n \n \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. G804085 LISA SOWELL, EMPLOYEE CLAIMANT EVERGREEN PACKAGING, LLC, EMPLOYER RESPONDENT ACE AMERICAN INSURANCE COMPANY/ GALLAGHER BASSETT SERVICES, INC., INSURANCE CARRIER/TPA RESPONDENT","fetched_at":"2026-05-19T22:29:46.343Z","links":{"html":"/opinions/full_commission-G804085-2023-06-22","pdf":"https://labor.arkansas.gov/wp-content/uploads/Sowell_Lisa_G804085_20230622.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}