{"id":"full_commission-H200157-2024-02-27","awcc_number":"H200157","decision_date":"2024-02-27","opinion_type":"full_commission","claimant_name":"Lindsey Crane","employer_name":"Hobby Lobby","title":"CRANE VS. HOBBY LOBBY AWCC# H200157 FEBRUARY 27, 2024","outcome":"denied","outcome_keywords":["denied:1"],"injury_keywords":["lumbar","back"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Crane_Lindsey_H200157_20240227.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Crane_Lindsey_H200157_20240227.pdf","text_length":17692,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO. H200157 \n \nLINDSEY CRANE,  \nEMPLOYEE \n \nCLAIMANT \nHOBBY LOBBY, EMPLOYER \n \nRESPONDENT \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES, INC., CARRIER/TPA \nRESPONDENT \n \nOPINION FILED FEBRUARY 27, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE EDDIE H. WALKER, Attorney \nat Law, Fort Smith, Arkansas. \n \nRespondents represented by the HONORABLE KEVIN J. STATEN, \nAttorney at Law, Little Rock, Arkansas. \n \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n The respondents appeal and the Claimant cross-appeals an opinion \nand order of the Administrative Law Judge filed September 8, 2023.  In said \norder, the Administrative Law Judge made the following findings of fact and \nconclusions of law:  \n1.  The Arkansas Workers' Compensation Commission has \njurisdiction over this claim. \n                \n 2. The stipulations agreed to by the parties at a pre-hearing     \n               Conference conducted on May 18, 2023, and contained in a        \n               pre-hearing order filed on May 26, 2023 are hereby accepted    \nas fact. \n \n\nCRANE- H200157   2\n  \n \n \n3.  Respondent have failed to prove that an IME is both reasonable \n     and necessary in order to make a judgment about this claim,    \n     and that motion is therefore denied. \n \n4. Claimant has met her burden of proof by a preponderance  \n    of evidence that she is entitled to temporary total disability  \n    benefits beginning April 18, 2023 and continuing to a date   \n    to be determined. \n  \n 5. Claimant has met her burden of proof by a preponderance of   \n               evidence that she is entitled to additional medical benefits as \n     directed by Dr. James Blakenship for her lumbar back injury.  \n     .   \n6. Claimant has failed to prove by a preponderance of the evidence  \n    that she is entitled to temporary partial disability benefits from  \n    February 27, 2023, until April 18, 2023. \n \n7. Respondent has controverted claimant’s entitlement to all   \n    indemnity benefits from April 18, 2023, to a date to be  \n    determined.    \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 September \n8, 2023 decision is supported by a preponderance of the credible evidence, \ncorrectly applies the law, and should be affirmed.  Specifically, we find from \na preponderance of the evidence that the findings made by the \nAdministrative Law Judge are correct and they are, therefore, adopted by \nthe 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\nCRANE- H200157   3\n  \n \n \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(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  IT IS SO ORDERED. \n    ___________________________________ \n    SCOTTY DALE DOUTHIT, Chairman \n \n    ___________________________________ \n    M. SCOTT WILLHITE, Commissioner \n \n \n \nCommissioner Mayton dissents \n \n \n \nDISSENTING OPINION \n \n         I respectfully dissent from the majority finding.  After my de novo \nreview of the file, I find that the respondent’s motion for an independent \nmedical examination is warranted and that the claimant has not proven by a \n\nCRANE- H200157   4\n  \n \n \npreponderance of the credible evidence that she is entitled to additional \nmedical treatment and additional temporary total disability benefits. \n           The claimant was an employee of the respondent employer when \nshe was injured on December 13, 2021, lifting “large pieces of wall decor, \nhaving to take them off the top and carry them down and load them onto a – \nlike a freight cart and then having to push them across the store.” (Hrng. \nTr., P. 25). The claimant initially treated at MedExpress in Fort Smith before \nbeing referred Conservative Spine Clinic in Fayetteville, where treatment \nbegan on January 19, 2022. (Cl. Ex. 1, P. 3).  After a lumbar MRI was \nconducted, the claimant was diagnosed with “[a]nnular fissure with small \ncentral disc protrusion” at L4-L5. (Cl. Ex. 1, P. 12). The claimant then began \ntreating with Dr. David Knox, a neurologist with NWA Neurosurgery Clinic \non March 30, 2022.  (Cl. Ex. 1, P. 17).  \n           A functional capacity evaluation was conducted on June 8, 2022, \nand the examiner noted that the claimant’s efforts were unreliable, noting \nher actual abilities could be higher than that demonstrated during the \nevaluation, ultimately determining that the claimant is capable of working in \nthe light category.  (Resp. Ex. 1, P. 3).  He went on to state the overall \nresults of the examination do not represent a true and accurate \nrepresentation of the claimant’s overall physical capabilities.  Id.  On July \n20, 2022, Dr. Knox concluded that “I do not believe any neurosurgical \n\nCRANE- H200157   5\n  \n \n \navenues would afford any benefit to her complaints,” saying that he would \ncontinue to treat claimant on an as-needed basis as he did “not believe we \nhave anything to offer her.”  (Cl. Ex. 1, P. 23).  Pursuant to the Change of \nPhysician Order, the claimant transferred her care to Dr. James \nBlankenship, who recommended surgery after seeing the claimant only one \ntime and took the claimant off work on February 27, 2023.  (Cl. Ex. 1, Pp. \n24-29). \n           In April 2023, the respondent filed a motion requesting an \nindependent medical examination by Dr. Owen Kelly.  (Hrng. Tr, P. 5).  The \nclaimant objected and the parties agreed to an examination by Dr. Scott \nSchlesinger. Id.  There were difficulties in setting up the examination with \nDr. Schlesinger’s office and the parties were unable to obtain the \nindependent medical examination prior to the hearing.  Id.  The claimant \nultimately objected to an IME citing an alleged delay in temporary total \ndisability benefits that would result from waiting for an exam to be \nscheduled.  The ALJ ultimately agreed and denied the respondent’s motion \nfor an independent medical examination and found the claimant was \nentitled to additional medical treatment and additional TTD benefits.  I \ndisagree.  \n\nCRANE- H200157   6\n  \n \n \nThe threshold question in this appeal is whether the independent \nmedical examination (IME) requested by the respondents is reasonable and \nnecessary as required by our rules, which state that: \n[a]n injured employee claiming to be entitled to compensation shall \nsubmit to such physical examination and treatment by another qualified \nphysician, designated or approved by the Workers' Compensation \nCommission, as the commission may require from time to time if \nreasonable and necessary.  Ark. Code Ann. § 11-9-511(a). \nIn his September 8, 2023 Opinion, the ALJ appears to equate the \nrespondents’ denial of additional temporary total disability (TTD) benefits \nwith the reasonableness of ordering an IME, agreeing with the claimant that \n“delaying the matter was creating a hardship for her.”  (P. 8).  While \nhighlighting that the respondents did not create the delay in scheduling an \nIME, the ALJ, without more, states that he “cannot find it reasonable to \ndelay this matter longer for an IME when claimant is not receiving TTD, \nespecially since I do not believe the IME to be necessary for a decision to \nbe reached in this matter” Id. \nThis approach, however, does not answer the question of whether \nan IME would be reasonable and necessary in this case.  While the ALJ \nholds that Dr. Knox and Dr. Blankenship’s opinions are not “radically \ndifferent,” because each arrived at the conclusion that the claimant has an \n\nCRANE- H200157   7\n  \n \n \nannular fissure at L4-L5, this disregards the way the doctors wish to treat \nthe claimant.  On July 20, 2022, Dr. Knox concluded that “I do not believe \nany neurosurgical avenues would afford any benefit to her complaints,” \nsaying that he would continue to treat claimant on an as-needed basis as \nhe did “not believe we have anything to offer her.”  (Cl. Ex. 1, P. 23).  Dr. \nBlankenship, however, recommended surgery, stating that: \n1. She has failed routine and usual conservative \nmeasures with two different rounds of physical \ntherapy with people I know.  She has had a \nLESI.  None of these things afforded her any \nrelief and she is getting worse. \n \n2. Despite the fact that she has 36 out of 56 \nconsistency measures, I feel very comfortable \nin the fact that this patient wants to get better.  \nI think the inconsistencies had to do with fear \navoidance because she has been hurting as \nlong as she has. \n \n3. The rationale for what I have offered her \nsurgically has more to do with that she has \ngross annular fissuring at L4-L5.  She has a \nposterior disc protrusion but more importantly \nshe has marked movement of the disk space in \nflexion and extension with collapse anteriorly \nand marked splaying posteriorly in flexion, \ncompletely abnormal for a patient her age.  I \nwould recommend a lateral approach since her \niliac crest is low enough with a lateral interbody \narthrodesis at L4-L5 and then posterior \nBridgePoint clamping with facet disruption and \nposterolateral arthrodesis.  (Cl. Ex. 1, P. 28). \n \n \n\nCRANE- H200157   8\n  \n \n \nBecause these opinions vary so greatly in their conclusions \nregarding the claimant’s current state, it is wholly reasonable to require that \nthe claimant undergo an IME to serve as a third opinion when one specialist \nhas opined no surgery is recommended, and the other specialist has \nrecommended a lumbar fusion. It defies logic for the ALJ to find the \nopinions of these two doctors are not “radically different”.  It is hard to \nimagine two more radically different opinions, which makes the reason for \nan independent medical examination even more important in a case such \nas this. \nRegarding the question of whether an IME would be necessary, the \nALJ again emphasizes the delay that obtaining an IME would require.  \nOnce again, this does not answer the call of the questions regarding \nwhether the examination would be reasonable and necessary, specifically \nin a case where the medical opinions could not be more different.  The ALJ \nfocuses, not on the facts of the case at hand, but rather which doctor \ncorrectly evaluated the claimant’s inconsistent effort on her functional \ncapacity evaluation (FCE) and which avenue could “bring claimant some \nrelief.” (Opinion P. 9). \nAt their barest, the facts reflect one medical opinion from the \nclaimant’s primary treating physician, Dr. Luke Knox, stating that there is no \nfurther treatment that would benefit the claimant after reviewing the results \n\nCRANE- H200157   9\n  \n \n \nof her MRI.  Dr. Blankenship, after a single visit and based entirely on his \nown beliefs regarding the FCE, recommended surgery and determined that \nthe claimant is unable to work.  It is clearly necessary to require the \nclaimant to submit to an IME when such wildly different results have arisen \nfrom the same set of facts and for these reasons, it is clearly both \nreasonable and necessary to require an IME under these circumstances. \nArkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires \nan employer to provide an employee with medical and surgical treatment \n\"as may be reasonably necessary in connection with the injury received by \nthe employee.\"  The claimant has the burden of proving by a \npreponderance of the evidence that the additional treatment is reasonable \nand necessary. Nichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 \nS.W.3d 148 (2010). What constitutes reasonably necessary treatment is a \nquestion of fact for the Commission Gant v. First Step, Inc., 2023 Ark. App. \n393, 675 S.W.3d 445 (2023).  \nIn assessing whether a given medical procedure is reasonably \nnecessary for treatment of the compensable injury, the Commission \nanalyzes both the proposed procedure and the condition it sought \nto remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. 153, \n426 S.W.3d 539 (2013). \n\nCRANE- H200157   10\n  \n \n \nThe Commission has authority to accept or reject medical opinion \nand to determine its medical soundness and probative force.  Gant v. First \nStep, Inc., 2023 Ark. App. 393, 675 S.W.3d 445 (2023).  Furthermore, it is \nthe Commission's duty to use its experience and expertise in translating the \ntestimony of medical experts into findings of fact and to draw inferences \nwhen testimony is open to more than a single interpretation.  Id. \nWe are left to consider which provider’s opinion should bear greater \nweight. Although the ALJ relies heavily on Dr. Blankenship’s report, \nbelieving that surgery would bring claimant “relief,” Doctor Knox was the \nclaimant’s treating physician for four months between March 30, 2022 and \nJuly 20, 2022, personally treating and examining the claimant before \nreaching the conclusion that there were no further treatment options for the \nclaimant.  (See Cl. Ex. 1, Pp. 3-23).  Doctor Blankenship, however, within a \nsingle visit on February 27, 2023, determined that the claimant would need \nto undergo surgery, including a fusion,.  (Cl. Ex. 1, Pp. 24-29).  In doing so, \nDr. Blankenship took the claimant off work, disregarding the results of the \nFCE.  Id. \nWhile Dr. Blankenship believes that the claimant cannot work until \nshe undergoes surgery, her FCE examiner stated that the claimant \n“demonstrated the ability to perform work in at least the LIGHT \nclassification,” stating that “[s]ince the results indicate an unreliable effort, \n\nCRANE- H200157   11\n  \n \n \nher actual abilities could be higher than that demonstrated during this \nevaluation.  The overall results of this evaluation do not represent a true \nand accurate representation of this client’s overall physical capabilities.” \n(Resp. Ex. 1, P. 3)(emphasis in original).  Dr. Blankenship, during his initial \nvisit with the claimant and later the ALJ, each hypothesize that the cause of \nthe claimant’s unreliable results on her FCE were due to “self-limiting \nbecause of the problem in her back” and “fear avoidance because she has \nbeen hurting as long as she has.”  (Opinion P. 9; Cl. Ex. 1, P. 28).  In \nproviding rational for why the claimant’s effort was unreliable in her FCE, \nboth Dr. Blankenship and the ALJ engage in spurious conjecture, which is \nwell settled to not be a substitute for credible evidence.  Smith-Blair, Inc. v. \nJones, 77 Ark. App. 273, 72 S.W.3d 560 (2002);.  There is no basis for \nthese assertions and no evidence in the record to support them.  While Dr. \nBlankenship was “comfortable” making this determination, he was not the \nclaimant’s treating physician until well over two years after the date of the \nclaimant’s compensable injury.  Dr. Knox is much better suited to make \nsuch a determination and did so, finding that the claimant’s treatment was \ncomplete. \nIt is unreasonable to rely on Dr. Blankenship’s opinion that the \nproposed surgery in this matter is necessary or reasonable.  This decision \nwas made after a single visit and in contradiction to all previous treatment \n\nCRANE- H200157   12\n  \n \n \nthe claimant received.  When balancing the two medical opinions, as well \nas the results to the claimant’s functional capacity evaluation, it is clear that \nany surgery is unreasonable under the circumstances and the claimant \nfailed to meet her burden of proof.  \nTo prevail on a request for additional temporary total disability \nbenefits, our rules require that the claimant must prove by a preponderance \nof the evidence that he is totally incapacitated from earning wages and \nremains in his healing period.  Hickman v. Kellogg, Brown & Root, 372 Ark. \n501, 277 S.W.3d 591 (2008).  The healing period ends when the employee \nis as far restored as the permanent nature of his injury will permit, and if the \nunderlying condition causing the disability has become stable and if nothing \nin the way of treatment will improve that condition, the healing period has \nended. Id. The determination of when the healing period has ended is a \nfactual determination for the Commission.  Id. \nThe record here is clear that the claimant was neither in her healing \nperiod nor unable to work once released from Dr. Knox’s care on July 20, \n2022.  Dr. Knox, who was best positioned to determine the claimant’s \nmedical needs, determined that the claimant should be released from care. \nThere were no additional treatment options for the claimant.  The FCE \nresults established that even if the claimant was exerting her best effort, \nwhich the examiner doubted, the claimant could work in at least the light \n\nCRANE- H200157   13\n  \n \n \ncategory.  She is not unable to work, and Dr. Blankenship’s opinion to the \ncontrary is unreliable and contrary to the weight of the evidence.  \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. H200157 LINDSEY CRANE, EMPLOYEE CLAIMANT HOBBY LOBBY, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES, INC., CARRIER/TPA RESPONDENT OPINION FILED FEBRUARY 27, 2024","fetched_at":"2026-05-19T22:29:45.989Z","links":{"html":"/opinions/full_commission-H200157-2024-02-27","pdf":"https://labor.arkansas.gov/wp-content/uploads/Crane_Lindsey_H200157_20240227.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}