{"id":"full_commission-G902784-2023-08-28","awcc_number":"G902784","decision_date":"2023-08-28","opinion_type":"full_commission","claimant_name":"Betty Lewis","employer_name":"Wal-Mart Associates, Inc","title":"LEWIS VS. WAL-MART ASSOCIATES, INC. AWCC# G902784 AUGUST 28, 2023","outcome":"denied","outcome_keywords":["denied:1"],"injury_keywords":["hip","back","fracture","lumbar","neck","knee","sprain"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Lewis_Betty_G902784_20230828.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Lewis_Betty_G902784_20230828.pdf","text_length":19385,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. G902784\n \n \nBETTY A. LEWIS, EMPLOYEE    CLAIMANT \n \nWAL-MART ASSOCIATES, INC., EMPLOYER           RESPONDENT NO. 1 \n \nWAL-MART CLAIMS SERVICES \nINSURANCE CARRIER/TPA                                       RESPONDENT NO. 1  \n \nDEATH & PERMANENT TOTAL DISABILITY  \nTRUST FUND                                                              RESPONDENT NO. 2 \n \n \nOPINION FILED AUGUST 28, 2023 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE FREDERICK S. “RICK” \nSPENCER, Attorney at Law, Mountain Home, Arkansas. \n \nRespondents No. 1 represented by the HONORABLE R. SCOTT \nZUERKER, Attorney at Law, Fort Smith, Arkansas. \n \nRespondent No. 2 represented by the HONORABLE DAVID L. PAKE, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \nOPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed February 28, 2023. In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission \nhas jurisdiction over this claim.  \n \n\nLewis-G902784     2  \n \n \n2.  That an employer/employee relationship existed on \nApril 16, 2019, and all relevant times.  \n \n3.  The claimant earned an average weekly wage of \n$733.08, sufficient for temporary total disability and \npermanent partial disability rates of $489.00/$368.00, \nrespectively.  \n \n4.  That the claimant proved, by a preponderance of the \nevidence, that she suffered a compensable left hip/leg \nand low back injury and is entitled to reasonable and \nnecessary medical for the treatment, which includes \nthe payment of any reasonable and necessary, out-of-\npocket medical expenses paid by the claimant.  \n \n5.  The claimant is entitled to attorney fees pursuant to \nArk. Code Ann. §11-9-715. This Award shall bear \ninterest at the legal rate pursuant to Ark. Code Ann. \n§11-9-809.  \n \n6.  If not already paid, the respondents are ordered to pay \nfor the cost of the transcript forthwith. \n \n We have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge's decision is \nsupported by a preponderance of the credible evidence, correctly applies \nthe law, and should be affirmed. Specifically, we find from a preponderance \nof the evidence that the findings of fact made by the Administrative Law \nJudge are correct and they are, therefore, adopted by the Full Commission.  \n All accrued benefits shall be paid in a lump sum without discount and \nwith interest thereon at the lawful rate from the date of the Administrative \n\nLewis-G902784     3  \n \n \nLaw Judge’s decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. \n2012). \n For prevailing on this appeal before the Full Commission, claimant’s \nattorney is entitled to fees for legal services in accordance with Ark. Code \nAnn. § 11-9-715 (Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \nhundred dollars ($500), pursuant to Ark. Code Ann. §11-9-715(b)(Repl. \n2012).   \n Therefore, we affirm and adopt the February 28, 2023 decision of the \nAdministrative Law Judge, including all findings and conclusions therein, as \nthe decision of the Full Commission on appeal.  \n  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n  \n\nLewis-G902784     4  \n \n \nDISSENTING OPINION \n I must respectfully dissent from the Majority’s determination that the \nclaimant has proved by a preponderance of the evidence that she suffered \na compensable left hip, leg, and low back injury for the following reasons: \nI. The Majority’s findings do not comport with the medical \nevidence \nIt is within the Commission's province to weigh all the medical \nevidence, to determine what is most credible, and to determine its medical \nsoundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. \n459, 637 S.W.3d 280 (2021). In weighing the evidence, the Commission \nmay not arbitrarily disregard medical evidence or the testimony of any \nwitness. Id. However, the Commission has the authority to accept or reject \nmedical opinions. Williams v. Ark Dept. of Community Corrections, 2016 \nArk. App. 427, 502 S.W. 3d 520 (2016). This, however, is not a case of \nconflicting medical opinions requiring that we determine the weight and \ncredibility of each practitioner’s experience and opinions, but rather the \nMajority’s findings are based on Dr. Lon Burba’s testimony alone.  \nDr. Burba began treating the claimant on August 30, 2019 and \nrecommended an MRI be conducted. (Cl. Ex. 1, Pp.7-8). The results of the \nclaimant’s September 25, 2019 pelvic MRI showed that the “sacrum, iliac \nwings, and sacroiliac joint spaces are unremarkable. The pubic bones and \n\nLewis-G902784     5  \n \n \npubic symphysis appear within normal limits. No stress-related marrow \nedema, fracture, or vascular necrosis.” (Cl. Ex. 1, P. 9). There were no \nfindings of any tears, cartilage loss, bursitis, or fracture. Id. In an attempt to \nlocate the source of the claimant’s pain, Dr. Lon Burba ordered an EMG \nand found “bilateral tarsal tunnel syndrome, a right C-4 radiculitis and a left \nL-4 radiculitis.” (Cl. Ex. 1, P. 21). He also reviewed an MRI of the lumbar \nspine which “revealed degenerative changes at multiple levels with \nforaminal stenosis mild at L-4 . . . An MRI of the hip revealed left \nintertrochanteric bursitis which was mild without significant gluteal \ntendinopathy or tendon tear.” Id. In short, Dr. Burba did “not really see a \nsurgical target” for treating the claimant’s subjective complaints. (Cl. Ex. 1, \nP. 24). After years of treating the claimant, Dr. Burba’s diagnosis boiled \ndown to “degenerative disc disease . . . a low-grade neuropathy . . . some \nbulges and some arthritis of the spine” as well as mild gluteal tendinosis \nwith no tear. (Cl. Ex. 2, P. 14). As discussed in greater detail below, Dr. \nBurba never uncovered the ultimate source of the claimant’s complaints. \nAt his June 8, 2022 deposition, Dr. Burba explained that to cause the \ndegree of inflammation alleged in the claimant’s hip, “there must have been \na lot of energy transfer.” (Cl. Ex. 2, P. 19). \nA. I don’t know – you know, in my mind, you \nknow, a cart bumping against a hip, you \nknow, to cause this kind of thing, I just \ncan’t conceive of – of why this continues to \n\nLewis-G902784     6  \n \n \ngo on, unless that cart was really moving \nor that cart was really heavy or – or had a \nmassive unexpected blow where she was \nunprotected. You know, there must have \nbeen a lot of energy transfer to cause this \ndegree of inflammation in that joint. \nQ. (by Mr. Zuerker) And that’s the assumption \nthat you’re working on, is that this was a \nviolent collision between her and – and I \nnoticed in one of your medical records, I \nthink she showed you a picture of the cart? \nA. You know, I don’t even remember that, if \nshe did. \nQ.   But the assumption – based on the degree \nof problems you’re seeing, the assumption \nyou’re making is that this was a rather \nviolent collision, correct? \nA.   Yes, it—with a lot of energy transfer. Id. \n \nDr. Burba further explained that it would be required that the claimant \nbe “wedged between something that kept her from moving, you know, if \nshe, in other words, had, like, a crush injury; or if – you know, if she was in \na very fragile position, like reaching and stretching on one foot, you know, \nand leaving her unable to protect herself.” (Cl. Ex. 2, P. 31). Dr. Burba \nnever reviewed the video of the accident and in fact cannot himself \nconceive of how this injury would occur “unless that cart was really moving \nor that cart was really heavy or – or had a massive unexpected blow that \nwas unexpected. You know, there must have been a lot of energy transfer \nto cause this degree of inflammation in that joint.” (Cl. Ex. 2, P. 19). \nThroughout his deposition, Dr. Burba emphasized that “a big part of [the \n\nLewis-G902784     7  \n \n \nquestion] is how heavy the cart was . . . [a]nd then even more, even more \nimportant is the velocity, how fast it was going.” (Cl. Ex. 2, P. 29-30). \nIn his February 28, 2023 Opinion, however, the ALJ characterized \nthe claimant’s accident as a “light and glancing blow” to the claimant’s left \nside on three separate occasions. (Op., Pp. 19, 20, 22). This fact is \nsubstantiated by the video submitted by the parties. (Resp. Ex. 3 at 11:52). \nRather than relying on the weight of Dr. Burba’s sworn statements, the ALJ \nand the Majority seemingly hinge their findings on a letter drafted by \ncounsel for the claimant and signed by Dr. Burba on October 29, 2021 \nstating that his objective findings regarding the claimant’s injury were an \nabnormal EMG/ NCV, positive Lasegue’s sign, and an MRI of the \nlumbosacral spine. (Cl. Ex. 1, P. 63; Cl. Ex. 2, Pp. 10-11). These findings, \nhowever, do not comport with Dr. Burba’s later testimony regarding \nobjective findings. \nBecause the Majority’s characterization of the April 16, 2019 \naccident upon reviewing the video as a light and glancing blow directly \nconflicts with Dr. Burba’s expert opinion that it would require a massive \nunexpected blow where the claimant was unprotected to cause the injuries \nsustained, there can be no doubt that the Majority erred in finding in the \nclaimant’s favor and I must dissent on this point. \nII. There are no objective findings showing that the claimant \nsuffered a compensable injury \n\nLewis-G902784     8  \n \n \n \nA compensable injury must be established by medical evidence \nsupported by \"objective findings.\" Ark. Code Ann. § 11-9-102(4)(D). \nObjective findings cannot come under the voluntary control of the patient. \nArk. Code Ann. § 11-9-102(16). There is no requirement that medical \ntestimony be based solely or expressly on objective findings, only that the \nrecord contain supporting objective findings. Singleton v. City of Pine Bluff, \n97 Ark. App. 59, 244 S.W.3d 709 (2006). \nThroughout the course of her treatment, no physician pointed to any \nobjective findings as to the true nature of the claimant’s injury. At her first \nappointment with Dr. Kevin Falwell on May 7, 2019, there was no indication \nof any misalignment or defect in the claimant’s left hip and she presented \nwith a full range of motion. (Cl. Ex. 1, P. 2). Upon review of her April 16, \n2019 x-rays, Dr. Falwell noted that the results were “reportedly normal.” (Cl. \nEx. 1, P. 1).  \nAs discussed above, an MRI ordered by Dr. Lon Burba showed that \nthe “sacrum, iliac wings, and sacroiliac joint spaces are unremarkable. The \npubic bones and pubic symphysis appear within normal limits. No stress-\nrelated marrow edema, fracture, or vascular necrosis.” (Cl. Ex. 1, P. 9). \nThere were no findings of any tears, cartilage loss, bursitis, or fracture. Id. \nPA-C Kenneth Weaver found no “swelling, ecchymosis, or deformity” \nupon examining the claimant on October 11, 2019, and reported that the \n\nLewis-G902784     9  \n \n \nclaimant’s MRI was “essentially negative.” (Cl. Ex. 1, P. 11). Ultimately, PA-\nC Weaver found “[n]o evidence of pathology on physical exam or other \nmodalities of evaluation.” (Cl. Ex. 1, P. 18). In fact, PA-C Weaver informed \nthe claimant he did “not believe the hip is the source of her discomfort today \nthrough any of the studies or treatment I provided.” (Resp. Ex. 1, P. 14). As \nof May 19, 2020, Dr. Burba noted that PA-C Weaver did not feel the \nclaimant’s left hip bursitis was playing any role in her pain. (Cl. Ex. 1, P. 23). \nThe “MRI of the pelvis revealed some fibroids, but the OB/GYN doctor did \nnot think the fibroids were playing a role in her pain. The MRI of the lumbar \nspine revealed some multilevel lumbar degenerative change at L4-5 with \nbilateral foraminal stenosis and this basically results from hypertrophic facet \nosteoarthritis which the radiologist feels causes mild bilateral \nneuroforaminal stenosis.” Id. Dr. Burba ultimately opined that “An MRI of \nthe lumbosacral spine revealed loss of disc height, circumferential annular \nbulge, moderate hypertrophic facet osteoarthritis at L4-5. The EMG \nrevealed mild reduction in the right and left tibial nerves; denervation of the \nC-4 root and the left L-4 root which is actually chronic denervation \nrenervation.” (Cl. Ex. 1, P. 27) (emphasis added). Dr. Burba believed that \nthe source of the claimant’s pain was primarily the L-4 root and \nosteoarthritis. (Cl. Ex. 1, P. 28). \n\nLewis-G902784     10  \n \n \nDr. Carlos Roman with Proper Pain Solutions agreed that there were \nno objective medical findings, opining on June 16, 2020 that claimant’s \n“lumbar spine maintains normal alignment. . . She ambulates without \nassistive device. Muscle tone is appropriate and symmetric” and that the \nclaimant’s complaints were not related to any sciatic nerve distribution. (Cl. \nEx. 1, P. 25). As of November 20, 2020, Dr. Burba determined that the \nclaimant had “evidence of chronic denervation at multiple sites in the LS \nspine which usually relates to deg disc disease.” (Resp. Ex. 1, P. 17-19). In \nhis report dated December 11, 2020, Dr. Burba noted an isotopic bone scan \nof the claimant’s body entirely was normal and a CT angiogram of the \nabdomen and pelvis revealed normal blood flow through to her back and \nlumbosacral plexus. (Cl. Ex. 1, P. 47). “Her EMG done on 11/11/20 \nrevealed a possible early demyelinating motor and sensory polyneuropathy \nwith a mononeuritis multiplex type distribution in the legs and there was \nalso chronic denervation renervation seen at L4, L5, and S1 especially on \nthe left side.” (Cl. Ex. 1, P. 48). \nDr. Jimmy Tucker stated in his report dated April 6, 2021 that the \nclaimant’s MRI did not show any “pathological features that would be \ncausing this pain.” (Resp. Ex. 1, P. 25-28). Dr. Tucker saw the claimant \nagain on July 2, 2021 and reviewed an additional MRI of the claimant’s left \nhip and stated that “[t]he MRI showed no signs of bursitis or inflammation of \n\nLewis-G902784     11  \n \n \nthe greater trochanteric area. . . At this point we have treated her \naggressively for greater trochanteric bursitis and she has been \nnonresponsive her MRI also shows no signs of inflammation or fluid.” \n(Resp. Ex. 1, P. 35). \nWhen asked at his June 8, 2022 deposition what, if any, objective \nfindings he found during his treatment of the claimant, Dr. Burba described \n“unresolving intertrochanteric bursitis of the left hip.” (Cl. Ex. 2, P. 11). This \nwas evidenced by the claimant’s MRIs and “heat in that intertrochanteric \nbursa . . . I can feel fluctuation or sort of an edematous or swollen feeling \nthere, and there’s crepitus in the joint when you move the leg around.” (Cl. \nEx. 2, Pp. 11-12). This statement, however, directly contradicts Dr. Burba’s \nprior statements and PA-C Weaver’s repeated findings. Until Dr. Burba’s \ndeposition, each of the claimant’s treating physicians agreed that bursitis \nwas not the source of the claimant’s ongoing pain. (See Cl. Ex. 1, P. 23). In \nfact, Dr. Burba previously opined that the source of her pain was \ndegenerative disc disease and osteoarthritis specifically. (Cl. Ex. 1, P. 28). \nThere was no evidence of the edema or crepitus that Dr. Burba describes \nwhen the claimant was examined by other physicians. (Resp. Ex. 1, P. 35). \nIn fact, Dr. Tucker reported on July 2, 2021 that the claimant’s most recent \nMRI “showed no signs of bursitis or inflammation of the greater trochanteric \narea. There are some mild effusion in both hips consistent with mild DJD. At \n\nLewis-G902784     12  \n \n \nthis point we have treated her aggressively for greater trochanteric bursitis \nand she has been nonresponsive her MRI also shows no signs of \ninflammation or fluid.” Id. Dr. Burba further describes the claimant’s \nadditional issues as “degenerative disc disease . . . a low-grade neuropathy \n. . . some bulges and some arthritis of the spine” as well as mild gluteal \ntendinosis with no tear. (Cl. Ex. 2, P. 14). These issues are definitively not \nrelated to the claimant’s April 16, 2019 injury. (Cl. Ex. 2, P. 16).  \nIn short, Dr. Burba’s diagnosis changed from “mild bursitis” to \nevidently unresolving and severe just prior to his deposition taking place. \nThe basis for this opinion seems to be not the results of medical testing by \nDr. Burba or any other experts, but rather the feeling of “heat” coming from \nthe claimant’s hip. This simply does not meet the standard of objectivity \nrequired by the Act as Dr. Burba cannot measure heat or crepitus within a \nreasonable degree of medical certainty. The treating physicians in this \nmatter have been addressing subjective concerns and complaints of pain \nfrom the claimant for over four years with no objective findings showing that \nher complaints are work-related. \nIII. The claimant’s testimony is unreliable \nA related issue in this matter is the ALJ’s acceptance of the \nclaimant’s statements as fact where her testimony contradicts the record. A \nclaimant’s testimony is never uncontroverted as a matter of law. Nix v. \n\nLewis-G902784     13  \n \n \nWilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994). It is within \nthe exclusive province of the Commission to determine the credibility of a \nwitness and the weight to be given to her testimony. Wade v. Mr. C. \nCavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). \nAt the hearing, claimant’s husband testified that “no issues right at \nthat time” with her back, hip, or while walking prior to her injury at Walmart. \n(Hrng. Tr., P. 8). Mr. Lewis further stated that she did not make complaints \nabout her back and neck “like she did after the injury.” (Hrng. Tr., P. 10). At \nher deposition on December 5, 2019, the claimant denied any previous \nneck pain, and contended that any previous treatment for her back was for \na fall as a teenager. (Cl. Depo., Pp. 53-54). However, one year prior to the \nWalmart accident, the claimant slipped in her bathroom and required \nmedical treatment for a left knee injury. (Joint Ex. 1, P. 1; Resp. Ex. 1, P. 1). \nThe claimant sought treatment for this injury with Dr. Jeffery Angel on April \n16, 2018 and an MRI and x-ray were performed. (Joint Ex. 1, P. 1; Hrng. \nTr., P. 48). Dr. Angel’s findings showed lumbosacral spine-left paraspinal \ntenderness. (Joint Ex. 1, P. 1). \nThe claimant later visited Sherwood Urgent Care in Batesville on \nJune 11, 2018 complaining of back pain and tightness. (Resp. Ex. 1, Pp. 2-\n4). At that time, she was diagnosed with a lumbar sprain and received a \nsteroid injection. Id. The claimant’s testimony disregards this history as \n\nLewis-G902784     14  \n \n \ndoes the Majority. Because the nature of this claim hinges on the reliability \nof the claimant’s testimony, I believe the Majority erred in relying on her \nwholly controverted testimony alone. \nFor the reasons stated above, I respectfully dissent. \n  \n \n                                                           ______________________________                                  \n                                                MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G902784 BETTY A. LEWIS, EMPLOYEE CLAIMANT WAL-MART ASSOCIATES, INC., EMPLOYER RESPONDENT NO. 1 WAL-MART CLAIMS SERVICES INSURANCE CARRIER/TPA RESPONDENT NO. 1 DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT NO. 2 OPIN...","fetched_at":"2026-05-19T22:29:46.189Z","links":{"html":"/opinions/full_commission-G902784-2023-08-28","pdf":"https://labor.arkansas.gov/wp-content/uploads/Lewis_Betty_G902784_20230828.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}