{"id":"full_commission-H000742-2023-10-04","awcc_number":"H000742","decision_date":"2023-10-04","opinion_type":"full_commission","claimant_name":"Daniel Kinne","employer_name":"Central States Mfg., Inc","title":"KINNE VS. CENTRAL STATES MFG., INC. AWCC# H000742 OCTOBER 4, 2023","outcome":"granted","outcome_keywords":["granted:2","denied:2"],"injury_keywords":["back","cervical","neck","lumbar","strain","carpal tunnel","knee","hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Kinne_Daniel_H000742_20231004.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Kinne_Daniel_H000742_20231004.pdf","text_length":19590,"full_text":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \n \nCLAIM NO.  H000742 \n \nDANIEL R. KINNE, \nEMPLOYEE \n \nCLAIMANT \nCENTRAL STATES MFG., INC.,  \nEMPLOYER \n \nRESPONDENT \nSENTRY INSURANCE COMPANY, \nINSURANCE CARRIER/TPA \nRESPONDENT \n  \n      \nOPINION FILED OCTOBER 4, 2023  \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney \nat Law, Fayetteville, Arkansas. \n \nRespondents represented by the HONORABLE JARROD S. PARRISH, \nAttorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n \n OPINION AND ORDER \nRespondent appeals an opinion and order of the Administrative Law \nJudge filed May 11, 2023.  In said order, the Administrative Law Judge made \nthe following findings of fact and conclusions of law:  \n1.  The   stipulations   agreed   to   by   the   parties   at   a   pre-hearing \nconference  conducted  on  February  22,  2023  and  contained  in  a \npre-hearing order filed that same date are hereby accepted as fact.  \n \n2.  Claimant has met his burden of proving by a preponderance of the \nevidence that he is entitled to additional medical treatment in the \nform   of   surgery   to   his   low   back   as   recommended   by   Dr. \nBlankenship.  \n \n \n\nKINNE – H000742   2\n  \n \n \n3. Claimant’s attorney is entitled to attorney’s fees on temporary total \ndisability  benefits  previously  paid  to  Claimant  as  a  result  of  his \ncervical surgery.  \n \nWe  have  carefully  conducted  a de  novo review  of  the  entire  record \nherein and it is our opinion that the Administrative Law Judge’s May 11, 2023 \ndecision is supported by a preponderance of the credible evidence, correctly \napplies  the  law,  and  should  be  affirmed.  Specifically,  we  find  from  a \npreponderance of the evidence that the findings made by the Administrative \nLaw  Judge  are  correct  and  they  are,  therefore,  adopted  by  the  Full \nCommission.  \nWe  therefore  affirm  the  decision  of  the  Administrative  Law  Judge, \nincluding  all  findings  of  fact  and  conclusions  of  law  therein,  and  adopt  the \nopinion as the decision of the Full Commission on appeal.  \nAll 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 Law \nJudge’s decision in accordance with Ark. Code Ann. §11-9-809 (Repl. 2012).  \nFor 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\nKINNE – H000742   3\n  \n \n \nIT IS SO ORDERED. \n \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \n      I respectfully dissent from the majority’s opinion.  In my de novo \nreview of the file in its entirety, I find that the claimant has not proven by a \npreponderance of the credible evidence that he is entitled to additional \nmedical treatment in the form of surgery to his low back as recommended \nby Dr. Blankenship.  I also find that Claimant’s attorney is not entitled to \nattorney’s fees on temporary total disability benefits previously paid to \nclaimant as a result of his cervical surgery.  \n           Claimant is a 50-year-old over the road truck driver for the \nrespondent employer.  On October 6, 2019, he suffered an admittedly \ncompensable injury to his neck and low back.  Claimant testified that on that \ndate he was walking on an uneven load, putting a tarp over the load, when \nhe slipped and fell, getting caught up in and hung from a rope, due to rain \nthat was falling. (Hrng. Tr., P. 6).  After the accident, claimant initially came \nunder the care of Dr. Berestnev who diagnosed claimant with a cervical and \n\nKINNE – H000742   4\n  \n \n \nlumbar strain.  (Cl. Ex. 1, Pp. 3-5).  He treated claimant with an injection of \nDepoMedrol. Id.  On a change of physician order, claimant began treating \nwith Dr. James Blankenship on June 22, 2020.  (Cl. Ex. 1, Pp. 47-52).  \n      The claimant requested a hearing on his entitlement to cervical spine \nsurgery as recommended by Dr. Blankenship and a pre-hearing conference \nwas held.  Prior to the hearing, respondents accepted liability for the \ncervical surgery.  (Resp. Ex. 2, P. 3).  Dr. Blankenship performed the \ncervical surgery on October 6, 2021, and according to Dr. Blankenship’s \nreports, the surgery was successful.  (Cl. Ex. 1, Pp. 76-79).  \n      After surgery, claimant continued to complain of low back pain.  In \nhis report of December 2, 2021, Dr. Blankenship indicated that claimant did \nnot want to consider surgery at that time but instead wanted to return to \nwork.  (Cl. Ex. 1, Pp. 89-93).  Claimant’s low back pain continued, and Dr. \nBlankenship ordered a new lumbar scan.  In his report of June 23, 2022, Dr. \nBlankenship stated that he discussed lumbar surgery with the claimant but \nbefore proceeding, recommended one last aggressive conservative \ntreatment trial consisting of a lumbar epidural steroid injection and an \naggressive physical therapy program.  (Cl. Ex. 1, Pp. 103-108).  In his \nreport of August 4, 2022, Dr. Blankenship indicated that the physical \ntherapy had aggravated claimant’s low back pain and stated that \nmedication had provided minimal relief.  He recommended a multilevel \n\nKINNE – H000742   5\n  \n \n \narthrodesis at L3-4, L4-5, and L5-S1.  (Cl. Ex.1, Pp. 110-114).  Conversely, \nin an IME report dated May 12, 2021, Dr. Frank J. Tomecek, stated that \nclaimant’s lumbar myelogram CT scan “showed minimal facet arthropathy \nat L4-5 and L5-S1. There were no fractures, no disk herniations, no neural \nimpingement, and no central or foraminal stenosis.  It was essentially a \nnormal myelogram for a 48-year-old male.” (Resp. Ex. 1, P. 16).  Dr. \nTomacek’s findings indicated that the claimant “has facet arthropathy that is \nmild . . . I do not believe that lumbar rhizotomy is reasonable or necessary \nin this patient . . . I definitely would not recommend this type of surgery on \nthis patient... I see no indication for surgery on his back.” (Resp. Ex. 1, P. \n17).  Accordingly, the respondents denied the claimant’s request for lumbar \nspine surgery. \n      It 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. \nApp. 459, 637 S.W.3d 280 (2021).  In weighing the evidence, the \nCommission may not arbitrarily disregard medical evidence or the testimony \nof any witness. Id.  However, the Commission has the authority to accept or \nreject medical opinions.  Williams v. Ark Dept. of Community Corrections, \n2016 Ark. App. 427, 502 S.W. 3d 530 (2016).  It is well settled in this State \nthat a medical opinion based on an unreliable history provided by a \n\nKINNE – H000742   6\n  \n \n \nclaimant should be disregarded.  Roberts v. Leo Levi Hospital, 8 Ark. App. \n184, 649 S.W.2d 402 (1983); see e.g.,Towery v. Hi-Speed Electrical Co., 75 \nArk. App. 167, 56 S.W.3d 391 (2001). \n      The claimant began treating with Dr. James Blankenship on June 22, \n2020 after a change of physician request was approved by the \nCommission.  (Cl. Ex. 1, Pp. 47-52).  At each visit, the claimant was given \nthe opportunity to report on his medical history.  Each visit, that history is \nlisted as “unremarkable.  Prior surgeries include bilateral carpal tunnel \nrelease, orthopedic surgery (knee) and lymphoid surgery” until the claimant \nunderwent surgery on his cervical spine with Dr. Blankenship on October 6, \n2021.  (Cl. Ex. 1, Pp. 48, 58, 67, 76).  Dr. Blankenship never reports any \nknowledge of the claimant’s relevant history of low back pain.  (Cl. Ex. 1, \nPp. 48, 58, 67, 76, 85, 90, 97, 104, 111).  At the April 12, 2023 hearing, \nclaimant testified that he never told Dr. Blankenship about his history of \nback problems. (Hrng. Tr., Pp. 15-16). \nQ (by Mr. Parrish):   You will agree with me \nunder medical history as far as what you \ndid or didn’t tell Dr. Blankenship, there is \nabsolutely no mention or documentation of \nyou ever having low back problems that \nrequired a TENS unit or any low back \nproblems that stopped you from working? \nA:   No, sir. \nQ:   So, every time we look at Dr. \nBlankenship’s medical history, there is \ngoing to be nothing there talking about any \nprior low back problems that he was aware \nof. Agree? \nA:   Yes. \n\nKINNE – H000742   7\n  \n \n \nQ:   And Dr. Blankenship operated under the \nunderstanding that you have never had \nany low back pain or radiating pain into \nyour right leg before.  Based on what we \nknow now, you will agree he would be \noperating with inaccurate or incomplete \ninformation; correct? \nA:   Yes. Id. \n \n      For this reason alone, we must disregard Dr. Blankenship’s \nrecommendation for lumbar surgery.  At the time Dr. Blankenship provided \nhis recommendation that the claimant undergo back surgery, he was not \narmed with the relevant facts concerning the claimant’s October 16, 2019 \ninjury and the claimant’s low back pain.  Because Dr. Blankenship’s opinion \nis unreliable, we can therefore only rely on the opinion of Dr. Frank \nTomecek who found that regarding the claimant’s lumbar spine, “he has \nfacet arthropathy that is mild . . . I do not believe that lumbar rhizotomy is \nreasonable or necessary in this patient . . . I definitely would not \nrecommend this type of surgery on this patient...I see no indication for \nsurgery on his back.” (Resp. Ex. 1, P. 17). \n      Arkansas Code Annotated § 11-9-508(a) states that an employer \nshall provide \"such medical . . . services . . . as may be reasonably \nnecessary in connection with the injury received by the employee. \" What \nconstitutes reasonable and necessary treatment under this section is a \nquestion of fact for the Commission.  Georgia Pacific Corp. v. Dickens, 58 \nArk. App. 266, 950 S.W.2d 463 (1997).  It is within the Commission's \n\nKINNE – H000742   8\n  \n \n \nprovince to weigh all the medical evidence, to determine what is most \ncredible, and to determine its medical soundness and probative force. \nSheridan Sch. Dist. v. Wise, 2021 Ark. App. 459, 637 S.W.3d 280 (2021).  \nIn weighing the evidence, the Commission may not arbitrarily disregard \nmedical evidence or the testimony of any witness.  Id.  However, the \nCommission has the authority to accept or reject medical opinions.  \nWilliams v. Ark Dept. of Community Corrections, 2016 Ark. App. 427, 502 \nS.W. 3d 520 (2016). \n      The claimant’s credibility as a witness is the key issue in determining \nwhether the lumbar surgery proposed by Dr. Blankenship is reasonable, \nnecessary, and causally related to the claimant’s October 16, 2019 injury. \nImportantly, a claimant’s testimony is never uncontroverted as a matter of \nlaw.  Nix v. Wilson World Hotel, 46 Ark. App. 303, 879 S.W.2d 457 (1994).  \nIt is within the exclusive province of the Commission to determine the \ncredibility of a witness and the weight to be given to his testimony.  Wade v. \nMr. C. Cavenaugh’s, 298 Ark. 363, 768 S.W.2d 521 (1989). \n      As seen above, the claimant has a history of omitting important facts \nor being outright untruthful in regard to the nature of his claim.  This can be \nseen throughout his medical records as well as his testimony at his \ndeposition which was inconsistent.  In November 2015, the claimant sought \ntreatment at Mercy Clinic in Rogers for complaints of low back pain \n\nKINNE – H000742   9\n  \n \n \nradiating into his right hip. (Resp. Ex. 1, P. 4).  At that time, Melanie Martin, \nAPRN opined that the claimant’s complaints likely originated “from heavy \nlifting and overuse,” and noted that the claimant requested a follow-up with \nneurology for imaging. Id.  In September 2016, the claimant again treated at \nMercy Clinic for complaints of right lumbar pain radiating to his right hip and \nfoot.  (Resp. Ex. 1, P. 7).  The claimant reported that this pain had begun \ntwo to three months prior and that he had tried a TENS unit at home with \nsome relief. Id. \n      Despite this history, when asked at his deposition whether, prior to \nthe work-related injury on October 6, 2019, he had a history of back pain, \nright lower lumbar pain radiating distal to his right foot...which caused him \nto stop driving and use a TENS unit to relieve the pain, the claimant \nresponded, “No, sir, I didn’t recall.” (Hrng.Tr. P. 14).  At the hearing, the \nclaimant testified: \nQ (by Mr. Parrish):   Mr. Kinne, you told me at \nyour deposition that you never had any \ninjury, problem, symptom or condition in \nyour low back before October 6, 2019. \nYou admit that; right? \nA:     Yes. \nQ:    And it was true testimony? \nA:     Yes, at the time, I thought, you know, I \ndidn’t remember anything before then. \nQ:    Okay. There are other instances in the \ndeposition where you give me that \nanswer. You tell me you don’t remember \nsomething, or you don’t recall. You’ll \nagree with that, right? \nA:     Yes. \n\nKINNE – H000742   10\n  \n \n \nQ:    That is not what you did when I asked you \nthis specific question about a specific \nbody part that is, in fact, in litigation here \nwhether you had any prior problems with \nyour low back before October 6, 2019. \nYou specifically answered me “no”; right? \nA:     I guess. \nQ:    And you remember me at the beginning of \nthe deposition telling you if you didn’t \nunderstand a question or you needed \nclarification on a question that you were to \nstop me and let me know? \nA:     Yes. \nQ: And you didn’t indicate any confusion or \nhesitancy or equivocate at all in telling me \nflatly, “no;” did you? \nA:     No. \nQ:    So, if I walked out of that deposition and \ndidn’t do my homework and get your \nmedical records and I based what I \nbelieved on what you told me, my \nunderstanding would be that there was no \nmedical history of any back problems \nbefore this accident; wouldn’t it? \nA:     Yes.  (Hrng. Tr, Pp. 12-14). \n \nOnce again, the claimant’s lack of credibility leads us to rely on the \nmedical evidence alone.  AN MRI conducted on September 18, 2020 \nrevealed: \n(1) Lumbosacral disk protrusion with annular \nfissuring with midline disk bulging with marked \nfacet arthropathy.  (2) Milder changes at the \nL4-5 level with significant arthropathy.  (3) \nBilateral lateral recess stenosis with midline \ndisk bulging at L3-4.  (4) Multilevel facet \narthropathy as described in the narrative.  (Cl. \nEx. 1, Pp. 55-56). \n \n      A later MRI of the claimant’s lumbar spine conducted on May 20, \n2022 reflected additional changes, including “a right foraminal disk bulge \neffaces, without displacing, the foraminal aspect of the exiting right L3 nerve \n\nKINNE – H000742   11\n  \n \n \nroot” and a “tiny central disk protrusion.” (Cl. Ex. 1, P. 102).  Mild disk \nbulging and facet joint arthropathy at L4-L5 and L5-S1 mildly narrow the left \nneural foramen at L4-L5 and mildly to moderately narrow the right neural \nforamen at L5-S1.” Id. Dr. Blankenship would later characterize these \nresults as \nRight-greater-than-left foraminal stenosis at the \nlumbosacrum with severe facet arthropathy.  \nHe has significant arthropathy with mild \nbilateral stenosis at L4-L5 and has an extreme \nlateral disc herniation on the right hand side at \nL3-L4. (Cl. Ex. 1, P. 106). \n \n  In contrast, upon reviewing the claimant’s records from Dr. Frank J. \nTomecek, a lumbar myelogram CT scan from May 2021 showed \n“minimal facet arthropathy at L4-5 and L5-S1. \nThere were no fractures, no disk herniations, \nno neural impingement, and no central or \nforaminal stenosis. It was essentially a normal \nmyelogram for a 48-year-old male.”  (Resp. \nEx. 1, P. 16). \n \n      Although it has been previously established that Dr. Blankenship’s \nrecords should be disregarded due to the claimant’s untruthful medical \nhistory, it is also important to note the vast distinction between Dr. \nBlankenship’s 2022 MRI findings and Dr. Tomecek’s 2021 report.  The 2022 \nMRI findings indicate significant changes from the earlier MRI in 2020.  Dr. \nBlankenship indicates “severe herniation” at L3-L4 that was not noted \npreviously with additional disk protrusions and annular fissuring.  (See Cl. \nEx. 1, Pp. 55-56, 102, 106).  These findings completely differ from Dr. \n\nKINNE – H000742   12\n  \n \n \nTomecek’s findings that the myelogram CT of claimant’s lumbar spine was \n“essentially normal.”  Dr. Blankenship makes no effort to explain these \nextreme changes over the course of two years and how they may be related \nto the claimant’s 2019 injury, and this alone indicates that his findings are \nunreliable.  Without more, it is not possible to attribute changes that appear \nthree years after an injury to that injury, and there is no medical opinion that \neven attempts to do so.  Without more, we are left to rely on the claimant’s \nown testimony regarding the source and extent of his pain.  Given the \nnature of claimant’s unreliable testimony, we are simply unable to say that \nhe has established by the preponderance of the evidence that his low back \npain was caused by the 2019 injury, exacerbated by it, or that any related \ntreatment is reasonable and necessary in relation to that injury. \n      Arkansas Code Annotated §11-9-715 provides that attorney’s fees \n“shall be allowed only on the amount of compensation for indemnity benefits \ncontroverted and awarded.”  In this matter, the question of fees specifically \nregards whether the cervical spine surgery conducted by Dr. Blankenship \nwas controverted.  There have been two pre-hearing orders issued in this \nmatter, the first of which listed the sole issue for litigation as “Claimant’s \nentitlement to surgery as recommended by Dr. Blankenship.” There was no \nmention of disability benefits or attorney’s fees in that order. \n\nKINNE – H000742   13\n  \n \n \n      While the ALJ contends that the respondent employer initially denied \nthe surgery leading the claimant to request a hearing, it is clear that any \ndelay in approving this surgery was in the course of investigating the \nclaimant’s original claim.  The respondents coordinated with Dr. Frank \nTomecek for an IME which took place on May 12, 2021. (Resp. Ex, 1, Pp. \n1-18). The respondents received Dr. Tomecek’s report on May 20, 2021 \nand approved the claimant’s surgery on May 25, 2021. (Resp. Ex. 2, P. 3). \nSubsequently, the ALJ cancelled the hearing on this issue.  Once surgery \ntook place, the respondents did not deny claimant’s entitlement to \ntemporary total disability benefits and paid them accordingly, and the issue \nof disability benefits was never litigated. \n      There is simply no statutory rational for granting the claimant \nattorney’s fees for an issue in which neither controverted nor litigated.  The \nrespondents investigated the nature of claimant’s allegations and acted \nswiftly to pay appropriate benefits once their investigation was completed \nand the claimant is, therefore, not entitled to attorney’s fees on the disability \nbenefit paid as a result of the cervical surgery.  Accordingly, for the reasons \nset forth above, I respectfully dissent. \n \n \n \n    ___________________________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H000742 DANIEL R. KINNE, EMPLOYEE CLAIMANT CENTRAL STATES MFG., INC., EMPLOYER RESPONDENT SENTRY INSURANCE COMPANY, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED OCTOBER 4, 2023","fetched_at":"2026-05-19T22:29:46.105Z","links":{"html":"/opinions/full_commission-H000742-2023-10-04","pdf":"https://labor.arkansas.gov/wp-content/uploads/Kinne_Daniel_H000742_20231004.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}