{"id":"full_commission-H003073-2025-08-05","awcc_number":"H003073","decision_date":"2025-08-05","opinion_type":"full_commission","claimant_name":"Kenneth Brewton","employer_name":"May Avenue Plumbing","title":"BREWTON VS. MAY AVENUE PLUMBING AWCC# H003073 August 05, 2025","outcome":"granted","outcome_keywords":["granted:3","denied:1"],"injury_keywords":["back","knee","shoulder","lumbar","herniated"],"pdf_url":"https://www.labor.arkansas.gov/wp-content/uploads/Brewton_Kenneth_H003073_20250805.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Brewton_Kenneth_H003073_20250805.pdf","text_length":9647,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H003073 \n \nKENNETH BREWTON, EMPLOYEE  CLAIMANT \n \nMAY AVENUE PLUMBING, EMPLOYER RESPONDENT \n \nUNITED FIRE & CASUALTY COMPANY,  RESPONDENT \nINSURANCE CARRIER/TPA  \n \n \nOPINION FILED AUGUST 5, 2025 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, JR., \nAttorney at Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE MELISSA WOOD, Attorney \nat Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal and the claimant cross-appeals an opinion and \norder of the Administrative Law Judge filed March 20, 2025.  In said order, \nthe Administrative Law Judge made the following findings of fact and \nconclusions of law: \n1. The   stipulations   agreed   to   by   the   parties   at   a   pre-hearing \nconference    conducted  on  January 15,  2025, and  contained  in  a \nPre-Hearing  Order  filed  that  same  date  are  hereby  accepted  as \nfact. \n \n2. Claimant has met his burden of proving by a preponderance that \nhe has a 13% impairment rating to the body as a whole for his low \nback injury. \n\nBREWTON - H003073  2\n  \n \n \n3. Respondent has controverted claimant’s entitlement to payment of \npermanent partial disability benefits in an amount equal to 8% to \nthe body as a whole.  \n \n4. Respondent is not liable for payment of a late payment penalty.  \n \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 made by the Administrative Law Judge are \ncorrect and they are, therefore, adopted by the Full Commission.  \n We 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. \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 \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(a)(Repl. 2012).  For prevailing on appeal to the Full \nCommission, the claimant’s attorney is entitled to an additional fee of five \n\nBREWTON - H003073  3\n  \n \n \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n  IT IS SO ORDERED. \n                                       _____________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n                                       _____________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \nCommissioner Mayton dissents. \n \nDISSENTING OPINION \n \n I must respectfully dissent from the majority’s opinion finding the \nclaimant has proven he is entitled to an additional 8% impairment rating to \nthe body as a whole for his low back injury. \n The claimant sustained a compensable injury to his low back in a \nJanuary 7, 2020 motor vehicle accident.  Three physicians have assigned \nthe claimant different permanent impairment ratings, ranging from zero to \nthirteen percent. \n After a hearing, an administrative law judge (ALJ) found the claimant \nhad met his burden of proving that he is entitled to a thirteen percent (13%) \nimpairment rating as assigned by Dr. James Blankenship.  Respondents \nappeal. \n“A permanent partial disability not scheduled in § 11-9-521 shall be \napportioned to the body as a whole, which shall have a value of four \n\nBREWTON - H003073  4\n  \n \n \nhundred fifty (450) weeks, and there shall be paid compensation to the \ninjured employee for the proportionate loss of use of the body as a whole \nresulting from the injury.”  Ark. Code Ann. § 11-9-522(a).  “Permanent \nbenefits shall be awarded only upon a determination that the compensable \ninjury was the major cause of the disability or impairment.”  Ark. Code Ann. \n§ 11-9-102(4)(F)(ii)(a).  Arkansas Code Annotated § 11-9-102(4)(D) \nprovides that a compensable injury must be established by medical \nevidence supported by objective findings.  An objective finding is defined as \na finding which cannot come under the voluntary control of the claimant. \nArk. Code Ann. § 11-9-102(16)(A)(i). \nThe claimant was treated by Dr. Edward Saer between April 22, and \nSeptember 21, 2021.  After an April 23, 2021 visit, Dr. Saer reported: \nExam was fairly unremarkable when I saw him \nan MRI done January 11, 2021 shows mild \ndegenerative disc change L2-S1 with no focal \nherniations or significant stenosis. \n \nHe has been going to physical therapy and \nsays he is better.  His legs are buckling on \nhim.  He still has pain on the left when he tries \nto flex his knee.  Sometimes he will get a \npopping sensation in the left lower back if he is \nseated and moves his left leg around. \n \nI reviewed the PT report from the last visit \nwhich was yesterday. \n \nHe has a lot of questions.  I went over his MRI \nreport with him line by line, and also pulled up \nthe actual films and went through them.  I \n\nBREWTON - H003073  5\n  \n \n \nexplained that the things we see on MRI are \nage related, and it is impossible to attribute his \npain to one specific finding.  I reassured him \nagain that he does not need any surgical \ntreatment for this.  The fact that he is \nimproving is a good sign. \n \n(Resp. Ex. 1, P. 4). \nThe claimant underwent a functional capacity evaluation (FCE) on \nSeptember 15, 2021, which Dr. Saer reviewed prior to releasing the \nclaimant at maximum medical improvement (MMI).  (See Hrng. Tr., \nNovember 13, 2023, p. 14, Resp. Ex. 1, Pp. 13-41).  Dr. Saer opined that \nthe claimant’s FCE was considered reliable with 53/53 consistency \nmeasures within expected limits and released the claimant at MMI, stating \nthat “[h]is restrictions are within normal limits.  He is at MMI and there is no \npermanent impairment related to his back injury.”  (Resp. Ex. 1, P. 9). \nThe respondents later obtained an independent medical evaluation \n(IME) performed by Dr. Wayne Bruffett on October 18, 2024.  Upon \nexamining the claimant and reviewing his imaging, Dr. Bruffett opined: \nI was able to review the MRI scans.  Honestly \nthey look pretty good.  He has some mild \ndegenerative changes.  On the more recent \nstudy he may have a small annular tear at L3-\n4.  He apparently had a significant injury if he \nrequired shoulder surgery.  So I would say with \na reasonable degree of medical certainty that \nhe did sustain injury to the lumbar spine as \ndescribed above.  However, he was treated \nnon operatively and I can not say that he has a \nspecific herniated nucleus pulposis.  And my \n\nBREWTON - H003073  6\n  \n \n \nopinion that an impairment rating of 5% of the \nwhole person based on the lumbar spine is \nreasonable. \n \n(Resp. Ex. 1, P. 11). \n The claimant was evaluated by Dr. James Blankenship who, on \nSeptember 5, 2024, wrote a letter to claimant’s attorney, opining that the \nclaimant has a “grade 1 anterolisthesis at the L4-5 level” and “a posterior \ndisc protrusion at the lumbosacrum,” assigning a thirteen percent (13%) \nrating to the body as a whole. (Cl. Ex. 2, P. 2). \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).  \nIn weighing the evidence, the Commission may not arbitrarily \ndisregard medical evidence or the testimony of any witness.  Id.  The \nCommission is not required to believe the testimony of the claimant or any \nother witness but may accept and translate into findings of fact only those \nportions of the testimony that it deems worthy of belief.  White v. Gregg \nAgricultural Enterprises, 72 Ark. App. 309, 37 S.W.3d 649 (2001).  \n Of the three physicians who treated, examined, and assigned the \nclaimant an impairment rating, Dr. Blankenship’s findings are clearly in \n\nBREWTON - H003073  7\n  \n \n \nconflict with the other two specialists who have treated and examined the \nclaimant.  \nDr. Blankenship’s opinion that the claimant is entitled to a thirteen \npercent (13%) rating to the body as a whole is unreasonable and \ndisproportionate when weighed against Dr. Saer’s findings that there were \nno objective findings on which to base an impairment rating, and Dr. \nBruffett’s opinion that the claimant potentially sustained a minor tear, which \nwould entitle him only to a five percent (5%) impairment rating.  There is no \nevidence in the record to suggest that the claimant has more than a minor \ninjury coupled with degenerative changes. \n It is unreasonable to find that the claimant, who has not undergone \nsurgery and who suffers from degenerative changes to his low back, with \nno clear objective findings, is entitled to a thirteen percent (13%) \nimpairment rating. The clear evidence in the record supports a finding that \nthe claimant is entitled to the five percent (5%) rating previously accepted \nand paid by the respondents.  The claimant has failed to meet his burden of \nproof to the contrary.  \nAccordingly, for the reasons set forth above, I must dissent. \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H003073 KENNETH BREWTON, EMPLOYEE CLAIMANT MAY AVENUE PLUMBING, EMPLOYER RESPONDENT UNITED FIRE & CASUALTY COMPANY, RESPONDENT INSURANCE CARRIER/TPA OPINION FILED AUGUST 5, 2025 Upon review before the FULL COMMISSION in Little...","fetched_at":"2026-05-19T22:29:44.073Z","links":{"html":"/opinions/full_commission-H003073-2025-08-05","pdf":"https://www.labor.arkansas.gov/wp-content/uploads/Brewton_Kenneth_H003073_20250805.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}