{"id":"full_commission-H203473-2024-04-04","awcc_number":"H203473","decision_date":"2024-04-04","opinion_type":"full_commission","claimant_name":"Patrick Austen","employer_name":"Lowe’s Home Centers LLC","title":"AUSTEN VS. LOWE’S HOME CENTERS LLC AWCC# H203473 APRIL 4, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["back","strain","hernia","lumbar","knee","hip"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Austen_Patrick_H203473_20240404.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Austen_Patrick_H203473_20240404.pdf","text_length":18289,"full_text":"NOT DESIGNATED FOR PUBLICATION \nBEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION \nCLAIM NO. H203473 \nPATRICK AUSTEN, EMPLOYEE      CLAIMANT \nLOWE’S HOME CENTERS LLC,  \nEMPLOYER                          RESPONDENT \n \nSEDGWICK CLAIMS MANAGEMENT \nSERVICES INC., \nINSURANCE CARRIER          RESPONDENT \n \n \nOPINION FILED APRIL 4, 2024 \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas.  \nClaimant represented by the HONORABLE EVELYN E. BROOKS, Attorney, \nFayetteville, Arkansas.  \nRespondents  represented  by  the  HONORABLE  RANDY  P.  MURPHY, \nAttorney, Little Rock, Arkansas.  \nDecision of Administrative Law Judge: Affirmed and Adopted.  \n \nOPINION AND ORDER \n Respondent appeals an opinion and order of the Administrative Law \nJudge filed August 31, 2023.  In said order, the Administrative Law Judge \nmade the following findings of fact and conclusions of law:  \n1. The stipulations agreed to by the parties at a pre-\nhearing  conference  conducted  on  August  19, \n2023, and contained in a pre-hearing order filed \n\nAUSTEN - H203473 \nApril 21, 2019, as modified, are hereby accepted \nas fact. \n \n2. Claimant has met his burden of proof by a \npreponderance of the evidence that he is \nentitled to additional medical benefits from Dr. \nJames Blankenship for his compensable back \ninjury.   \nWe have carefully conducted a de novo review of the entire record \nherein and it is our opinion that the Administrative Law Judge’s August 31, \n2023 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 Administrative \nLaw  Judge  are  correct  and  they  are,  therefore,  adopted  by  the  Full \nCommission.  \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 \n \n\nAUSTEN - H203473 \nIT IS SO ORDERED.  \n      \n_______________________________ \n   SCOTTY DALE DOUTHIT, Chairman             \n \n_______________________________ \n   M. SCOTT WILLHITE, Commissioner   \n \n \n \nCommissioner Mayton dissents \n \nDISSENTING OPINION \n \nI respectfully dissent from the majority opinion.  After my de novo \nreview of the file, I find that the claimant has failed to prove by a \npreponderance of the credible evidence that he is entitled to additional \nmedical treatment by Dr. James Blankenship for his compensable back \ninjury. \n On July 12, 2019, the claimant suffered an admittedly compensable \ninjury to his low back when loading a refrigerator onto the lift grate of a \ndelivery truck.  The claimant was initially seen at MedExpress in Fayetteville \nand was diagnosed with a muscle strain.  (Resp. Ex. 1, Pp. 1-4).  He was \nreleased to full duty at that time.  (Resp. Ex. 1, P. 4).  After continued \ncomplaints, MedExpress diagnosed the claimant with a unilateral inguinal \nhernia.  (Resp. Ex 1, P. 10).  The claimant was seen by Dr. Robert Petrino \non August 12, 2019, who did not feel the claimant’s pain was related to a \n\nAUSTEN - H203473 \nhernia, but rather to his low back, and referred the claimant to Dr. Luke \nKnox to be reevaluated.  (Resp. Ex. 1, Pp. 14-16). \n At the claimant’s September 16, 2019 visit, Dr. Knox indicated that \nthe claimant’s active problems were: \n1. DDD (degenerative disc disease), lumbar \n2. Lumbar disc herniation \n3. Lumbar foraminal stenosis \n4. Lumbar pain \n5. Lumbar radiculopathy \n6. Sciatica of the right side (Resp. Ex. 1, P. 17). \nUpon physical examination, Dr. Knox found tenderness at “level L1-\nL2 right paraspinal, but not the lumbar spine, not the left paraspinal, not the \nleft sciatic notch and not the right sciatic notch.”  (Resp. Ex. 1, P. 18).  \nDr. Knox ordered an x-ray of the claimant’s lumbar spine as well as \nan MRI of the lumbar spine, noting that the claimant’s pain was consistent \nwith L1-L2 radiculopathy.  (Resp. Ex. 1, P. 19).  Upon reviewing the \nclaimant’s x-ray report, Dr. Knox opined that: \nDegenerative changes are noted at 3-4, 4-5 \nand 5-1, appearing to be worse at 4-5 and 5-1. \nThere is no evidence of overt instability on \nflexion and extension views, no evidence of \nerosive bony abnormality and no evidence of \ncompressive vertebral body abnormality.  \nThere are degenerative changes noted \nthroughout the lower lumbar levels with facet \nsettling.  (Resp. Ex. 1, P. 22). \n \nThe results of the claimant’s MRI showed: \nL4-5: Diffuse disc bulge asymmetric to the right \nand bilateral facet arthropathy results in mild \n\nAUSTEN - H203473 \nbilateral lateral recess narrowing and moderate \nbilateral foraminal narrowing. \n \nL5-S1: Diffuse disc bulge asymmetric to the \nright and bilateral facet arthropathy results in \nsevere right foraminal stenosis and moderate \nleft foraminal narrowing. There could be \nimpingement upon the exiting right L5 nerve \nroot.  (Resp. Ex. 1, P. 23). \n \nImpression: Lower lumbar predominant \nspondylosis, worst at L4-5 and L5-S1 levels. \nThere is severe right sided foraminal stenosis \nat L5-S1 level, which could result in \nimpingement upon the existing L5 nerve root. \n(Resp. Ex. 1, P. 23). \n \nThese results showed, “[n]o canal, lateral recess, or foraminal narrowing” at \nthe L1-L2 level.  Id.  However, upon reviewing the MRI, Dr. Knox \ndetermined that the claimant has a “foramenal disc at L1-2 on the rt will get \nstarted pain management/foraminal selective nerve block L1-2 on right.” \n(Resp. Ex. 1, P. 27).  Dr. Knox referred the claimant to Camp Interventional \nPain Associates and released him to work without limitations, full duty \n(Resp. Ex Pp. 27-31).  \n After his first visit with the claimant on October 22, 2019, Dr. \nNicholas Camp at Camp Interventional Pain Associates noted that “[a]n \nMRI to the lumbar spine performed recently was revealing for disc \nprotrusions, primarily at the right L1-2 level” and reported that he “opened \nthe patient’s MRI today during our visit and discussed, in detail, this \npatient’s underlying pathology and our treatment approaches available to \n\nAUSTEN - H203473 \naddress this pain . . . Will schedule for a right L1/2 selective nerve root \nblock with fluoroscopy.”  (Resp. Ex. 1, Pp. 31-36).  The claimant received \nnerve blocks by Dr. Camp on November 5 and November 19, 2019 (Resp. \nEx. 1 Pp. 37-44).  The claimant followed up with Dr. Knox on December 9, \n2019, reporting 75% improvement.  (Resp. Ex. 1, P. 45.) Dr. Knox’s report \nindicated that there were “[d]egenerative changes noted at L4-L5 and L5-\nS1. Right L1-L2 lateral bulging disc affecting the Right L1 nerve,” and Dr. \nKnox referred the claimant for “evaluation of extreme lateral disc herniation \nat L1-2 on the right.”  (Resp. Ex. 1, P. 47).  \nOn December 18, 2019, the claimant saw Dr. Brandon Evans who \nrecommended that the claimant continue with non-surgical measures due to \nthe improvement he had shown until that point in time.  Dr. Evans stated in \nhis report: \n37-y/o male with history of L1 radiculopathy \nthat is improved with therapies.  He how has \nsymptoms of radiculopathy that suggest a \nlower nerve root compression as it is located in \nlateral thigh.  Overall, his symptoms have \nimproved with the recent injections.  I reviewed \nhis MRI and showed and explained my \nimpression. There is a far lateral disc at L1-2 \nthat was likely the source of his original \nsymptoms. The radicular pain has resolved \nfrom this and he is left with numbness. I \nexplained that this could be permanent but the \nfact it is no longer painful suggests it is no \nlonger being injured from the disc fragment, \nthus surgery would not likely convey any more \nbenefit and only add risk.   Related to his new \nsymptoms, this too appears to be improving \n\nAUSTEN - H203473 \nand more tolerable.  On his MRI there is disc \nprotrusion at L4-5 and L5-S1 that narrows the \nneural foramen.  This MRI was done prior to \nhis new symptoms, so it is limited in this \nregard.  His new symptoms do not extend \nbelow the knee so it is difficult to delineate \nwhich nerve root is symptomatic on clinical \nexam.  However, at this time, I encouraged him \nto continue with the nonsurgical treatments as \nhe has improved and surgery would add \nsignificant long term risk given his age.  I \nrecommend he try to get a selective right L4-5 \nforaminal injection to see his this helps more \nwith his residual symptoms. \n \n On June 2, 2020, the claimant underwent an additional MRI, which \nrevealed:  \n \nL1-L2: There is a diffuse disc bulge asymmetric \nto the right. There is no central canal stenosis. \nThere is no facet osteoarthritis. There is mild \nright neural foraminal stenosis. \n. . .  \nL4-L5: There is diffuse disc bulge. There is no \ncentral canal stenosis. There is moderate \nbilateral facet osteoarthritis.  There is mild-to-\nmoderate left neural foraminal stenosis. \n \nL5-S1: There is diffuse disc bulge. There is no \ncentral canal stenosis. There is mild bilateral \nfacet osteoarthritis. There is moderate bilateral \nneural foraminal stenosis.  The disc bulge also \nminimally impinges on the bilateral S1 nerve \nroots. \n \nImpression: 1. Degenerative disc and joint \ndisease with varying degrees of neural \nforaminal stenosis as described above.  Disc \nbulge at L5-S1 minimally impinges on the \nbilateral S1 nerve roots.  (Resp. Ex. 1, Pp. 174-\n175).  \n \n\nAUSTEN - H203473 \nAfter continuing treatment, the claimant obtained a third MRI on June \n14, 2021, which showed: \nThere is degenerative disc signal throughout \nthe lumbar spine . . . There is multilevel \ndiscogenic and facet degenerative changes \nthat will be discussed on a level by level basis: \n. . .  \n \nL1-L2: No central canal or neural foraminal \nnarrowing. \n. . .  \n \nL4-L5: Mild diffuse disc bulge and early facet \nhypertrophy resulting in mild effacement of the \nthecal sac and mild bilateral neural foraminal \nnarrowing. \n \nL5-S1: Minimal diffuse disc bulge and mild \nfacet hypertrophy resulting in mild effacement \nof the intrathecal sac, moderate right neural \nforaminal narrowing, and mild left \nneuroforaminal narrowing. \n \n \nImpression: \n \n1. Mild  degenerative  changes  of  the  lumbar \nspine worst in the lower lumbar spine. At L5-\nS1,  there  is  minimal  diffuse  disc  bulge  and \nmild   facet   hypertrophy   resulting   in   mild \neffacement   of   the   anterior   thecal   sac, \nmoderate  right  neural  foraminal  narrowing, \nand mild left neuroforaminal narrowing. \n \n2. Mild degenerative disc signal involving all 5 \nintervertebral  discs  of  the  lumbar  spine. \n(Reps. Ex. 1, P. 234). \n \nThe claimant underwent a fourth and final MRI on August 15, 2022, \nwhich showed “[m]ild multilevel spondylosis, as above.  No high-grade \n\nAUSTEN - H203473 \ncanal stenosis at any level” (Resp. Ex. 1, P. 280).  This is noted to being \nsimilar to the claimant’s September 2019 MRI results.  (Resp. Ex. 1, P. \n279). \nThroughout his treatment, two doctors – Dr. Kenneth Tonyman and \nDr. James Blankenship – offered the claimant very invasive surgeries to \nrelieve his symptoms.  Neither appear to indicate the relationship between \nthe claimant’s L4-5/L5-S1 complaints and his work-related injury. \nThe respondents obtained an additional opinion from Dr. Owen Kelly, \na board-certified orthopedic surgeon, regarding the Dr. Blankenship’s \ncontention that an anterior arthrodesis at L4-5/L5-S1 is reasonable and \nnecessary. Dr. Kelly opined that: \nL1-L2: \nMr. Austen’s complaint was localized to the L1-\nL2 level with a documented lateral disc \nherniation affecting L1.  He underwent \ntreatment and management at that level \nincluding selective nerve root blocks.  His \nfindings including the groin pain are consistent \nwith that dermatome distribution.  There did not \nappear to be right hip pathology noted to \nexplain his symptoms.  The L1-L2 pathology \n(lateral disc herniation) appeared to be work \nrelated. \n \nL4-S1: \nMr. Austen has objective findings of \ndegenerative disc disease/ multilevel \nspondylosis at L4-S1 which includes disc \nnarrowing/ desiccation, hypertrophy and \nneuroforaminal narrowing.  These findings are \nconsistent with degeneration not an isolated \nevent. The medical documentation, physical \n\nAUSTEN - H203473 \nexam findings and diagnosis isolate the injury \nat the L1-L2 segment.  The L4-S1 findings do \nnot appear to be related to injury. \n \nTREATMENT: \nThe L1-L2 treatment which included medicinal \ntreatment, injections/ blocks, and the \npreviously mentioned surgical intervention at \nthat level are related. \n \nAlthough there is documented pathology at L4-\nS1, the treatment would be related to the \ndegenerative disc disease. This would include \nthe medicinal treatment, therapy, injections, \nand the arthrodesis/ fusion at L4-S1. This is \nsupported by the provided medical \ndocumentation at Northwest Arkansas \nNeurosurgery clinic and including the MRI \nimaging.  (Resp. Ex. 1., Pp. 295-300). \n \nThe sole question here is whether the claimant is entitled to \nadditional medical treatment related to his compensable low back injury. \nArk. Code Ann. § 11-9-508(a) (Repl. 2012) requires an employer to provide \nan employee with medical and surgical treatment \"as may be reasonably \nnecessary in connection with the injury received by the employee.\"   The \nclaimant has the burden of proving by a preponderance of the evidence that \nthe additional treatment is reasonable and necessary.  Nichols v. Omaha \nSch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010).  \nWhat constitutes reasonably necessary treatment is a question of \nfact for the Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 \nS.W.3d 445 (2023).  In assessing whether a given medical procedure is \nreasonably necessary for treatment of the compensable injury, the \n\nAUSTEN - H203473 \nCommission analyzes both the proposed procedure and the condition it \nsought to remedy.  Walker v. United Cerebral Palsy of Ark., 2013 Ark. App. \n153, 426 S.W.3d 539 (2013). \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. \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 \nor reject medical opinions.  Williams v. Ark Dept. of Community Corrections, \n2016 Ark. App. 427, 502 S.W. 3d 530 (2016).   Furthermore, it is the \nCommission'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. \n        In the present case, the ALJ disregards the opinions of Dr. Knox, Dr. \nCamp, Dr. Evans, Dr. Boris, and Dr. Kelly in finding in favor of the claimant. \nIn doing so, the ALJ states: \nFrom the records and the testimony, I am \nsatisfied that claimant injured his back at L4-S1 \nin July 2019. It is a bit puzzling how the four \nMRIs claimant has undergone have shown \ndifferent results at his L1-L2 level.  That is, \nhowever, largely irrelevant to the issue of the \nreasonableness of Dr. Blankenship’s \nrecommendations, which is for surgery at the \nL4-S1 level.  Claimant was understandably \n\nAUSTEN - H203473 \nreluctant to undergo a major surgery such as \nhas been suggested to him but has reached \nthe point that it seems to be his only option. \n(Op., P. 10). \n \nThe four MRIs the claimant has undergone all result in the \nconclusion that the claimant’s L4-S1 symptoms are degenerative in nature \nand therefore not work related.  \nThroughout the claimant’s records, there are repeated objective \nfindings of pathology at L1-L2, namely an “extreme lateral disc herniation at \nL1-2 on the right,” which had largely resolved by December 2019.  (Resp. \nEx. 1, P. 47; Cl. Ex. 1, P. 3).  Each MRI the claimant has undergone that \nindicates any findings of a diffuse disc bulge between L4-S1 describes them \nas “mild” or “minimal.”  (Resp. Ex. 1, P. 234).  The “[d]isc bulge at L5-S1 \nminimally impinges on the bilateral S1 nerve roots.”  (Resp. Ex. 1, P. 174).  \nThere are no objective findings to indicate that this diffuse disc bulge \nis the source of the claimant’s pain.  In fact, by the claimant’s own reports, \nnerve blocks at L1-L2 consistently relieved the claimant’s pain between \n75% and 80%.  (Resp. Ex. 1, Pp. 52, 62).  The primary concern throughout \nthe claimant’s treatment was the disc bulge at L1-L2 because no \npractitioner believed L4-S1 to be the source of the claimant’s work-related \npain until the claimant treated with Dr. Blankenship in 2022. The only doctor \nsuggesting that the claimant’s L4-S1 issues are related to his 2019 injury is \nalso the sole doctor seeking to perform surgery—Dr. Blankenship. It is \n\nAUSTEN - H203473 \nunreasonable to presume that only one doctor is correct when no fewer \nthan four others somehow missed the mark with the same level of access to \nthe claimant’s medical records and the claimant himself.  Dr. Kelly’s findings \nsummarize this point clearly: \nThe L1-L2 treatment which included medicinal \ntreatment, injections/ blocks, and the \npreviously mentioned surgical intervention at \nthat level are related. \n \nAlthough there is documented pathology at L4-\nS1, the treatment would be related to the \ndegenerative disc disease. This would include \nthe medicinal treatment, therapy, injections, \nand the arthrodesis/ fusion at L4-S1. This is \nsupported by the provided medical \ndocumentation at Northwest Arkansas \nNeurosurgery clinic and including the MRI \nimaging. (Resp. Ex. 1., P. 300). \n \nAccordingly, for the reasons set forth above, I must dissent. \n                    _______________________________ \n     MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS’ COMPENSATION COMMISSION CLAIM NO. H203473 PATRICK AUSTEN, EMPLOYEE CLAIMANT LOWE’S HOME CENTERS LLC, EMPLOYER RESPONDENT SEDGWICK CLAIMS MANAGEMENT SERVICES INC., INSURANCE CARRIER RESPONDENT OPINION FILED APRIL 4, 2024 Upon review before the FULL COMMISSION i...","fetched_at":"2026-05-19T22:29:45.614Z","links":{"html":"/opinions/full_commission-H203473-2024-04-04","pdf":"https://labor.arkansas.gov/wp-content/uploads/Austen_Patrick_H203473_20240404.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}