{"id":"full_commission-H204215-2024-03-21","awcc_number":"H204215","decision_date":"2024-03-21","opinion_type":"full_commission","claimant_name":"Richard Oliver","employer_name":"Arkansas Department Of Environmental Quality","title":"OLIVER VS. ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY AWCC# H204215 MARCH 21, 2024","outcome":"unknown","outcome_keywords":[],"injury_keywords":["back","lumbar","strain","hip","fracture"],"pdf_url":"https://labor.arkansas.gov/wp-content/uploads/Oliver_Richard_H204215_20240321.pdf","source_index_url":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/","filename":"Oliver_Richard_H204215_20240321.pdf","text_length":14688,"full_text":"NOT DESIGNATED FOR PUBLICATION \n \n \nBEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION \n \nCLAIM NO.  H204215 \n \nRICHARD G. OLIVER, EMPLOYEE  CLAIMANT \n \nARKANSAS DEPARTMENT OF ENVIRONMENTAL \nQUALITY, EMPLOYER RESPONDENT \n \nPUBLIC EMPLOYEE CLAIMS DIVISION,   \nINSURANCE CARRIER/TPA RESPONDENT \n \n \nOPINION FILED MARCH 21, 2024 \n \nUpon review before the FULL COMMISSION in Little Rock, Pulaski County, \nArkansas. \n \nClaimant represented by the HONORABLE MARK A. PEOPLES, Attorney \nat Law, Little Rock, Arkansas. \n \nRespondents represented by the HONORABLE CHARLES H. McLEMORE, \nJR., Attorney at Law, Little Rock, Arkansas. \n \nDecision of Administrative Law Judge:  Affirmed and Adopted. \n \n OPINION AND ORDER \n Respondents appeal an opinion and order of the Administrative Law \nJudge filed September 28, 2023.  In said order, the Administrative Law \nJudge made the following findings of fact and conclusions of law: \n1. The Arkansas Workers’ Compensation Commission has \njurisdiction over this claim.  \n \n2. The stipulations set forth above are reasonable and are hereby \naccepted. \n \n3. Claimant has proven by a preponderance of the evidence that he \nis entitled to additional treatment of his compensable back injury \nin the form of a referral to Dr. Kenneth Rosenzweig for the \n\nOLIVER - H204215  2\n  \n \n \npurpose of determining whether he should be assigned a \npermanent impairment rating. \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 \nhundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. \n2012). \n \n\nOLIVER - H204215  3\n  \n \n \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 \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 \ntreatment of his compensable back injury in the form of a referral to Dr. \nRosenzweig for the purpose of determining whether he should be assigned \na permanent impairment rating. \nThe claimant, Richard Oliver, sustained a compensable low back \ninjury while moving cubicles at the Arkansas Department of Environmental \nQuality (ADEQ) offices on May 31, 2022.  The claimant initially treated with \nHealthcare Express on June 1, 2022, where he was assessed with a \nlumbar strain.  (Cl. Ex. 1, Pp. 1-2).  There, PA-C Claire Golden discussed \nmuscle relaxants with the claimant, but claimant declined due to an \nupcoming heart ablation.  Id.  PA-C Golden informed the claimant that if his \npain persisted, she would refer him for physical therapy.  Id. \n\nOLIVER - H204215  4\n  \n \n \n The respondents ultimately referred the claimant to Dr. Michael \nCassat, who began treating the claimant on June 7, 2022.  (Resp. Ex. 1, P. \n1).  Upon physical examination, Dr. Cassat found: \nThe lumbar spine is normal in \nappearance, as well as the \noverlying skin.  There is no bony \npoint tenderness. There is no \ntenderness over the SI joints. \nRange of motion is normal in \nflexion and extension with \nreproduction of pain in flexion. \nSeated SLR is normal.  DTRs are \n2+ at both patella[s S]trength is \nnormal at bilateral hip flexors, \nquads, tibialis anterior, gastric, \nEHL. Ther is no pretibial edema.  \n \nX-Rays today without acute \nprocess.  We will start physical \ntherapy for neutral spine core \nstrengthening and modalities. \nFollow up with me in 4 weeks.  \nHis work restrictions are no lifting, \npushing, pulling greater than 15 \nlb.  (Resp. Ex. 1, Pp. 1-2). \n \n The claimant underwent a physical therapy evaluation on June 22, \n2022, but testified that therapy only helped “[a] little bit.” (Hrng. Tr, P. 10; \nResp. Ex. 1, Pp. 4-8).  On July 28, 2022 the claimant obtained an MRI, \nwhich found, in part: \nL3-4: Mild diffuse disc bulge \nindenting the thecal sac without \nspinal canal stenosis. There is mild \nleft neural foraminal narrowing. \n \n\nOLIVER - H204215  5\n  \n \n \nL4-5: Mild diffuse disc bulge \nindenting the thecal sac without \nspinal canal stenosis. The disc \ncontacts but does not displace the \ntransiting left L5 nerve root in the \nlateral recess. There is mild neural \nforaminal narrowing.  There is mild \nfacet arthrosis. \n \nL5-S1: Mild diffuse disc bulge \nindenting the thecal sac without \nspinal canal stenosis.  A small left \nparacentral posterior annular \nfissure is noted without protrusion \nof disc material.  There is no \nneural foraminal narrowing. There \nis mild facet arthrosis. \n \nIMPRESSION: \nMild lumbar spondylosis at the L3-\n4, L4-5 and L5-S1 levels without \nsignificant spinal canal stenosis or \nneural foraminal narrowing.  Disc \nbulge at L4-5 contacts but does \nnot displace the transiting left L5 \nnerve root in the lateral recess. \n(Resp. Ex. 1, Pp. 9-10). \n \nThe claimant returned to Dr. Cassat on August 9, 2022, who \nreported that: \nHe returns today to review his \nlumbar spine MRI which shows \nsome small disc herniations \nconsiderable central or foraminal \nstenosis.  He has fluid in his facets \nat multiple levels with some \ndegenerative change present.  We \ndiscussed that this could be \nindicative an acute exacerbation \nsome facet pathology.  Given that \n\nOLIVER - H204215  6\n  \n \n \nhe no significant symptoms before \nhis injury this is greater than 50% \nlikely to be causative his \nsymptoms.  We discussed medial \nbranch blocks with rhizotomy. He \nwould like to return to work without \nrestrictions which I think is \nreasonable. (Resp. Ex. 1, P. \n11)(errors in original). \n \n Dr. Cassat released the claimant to full duty with no restrictions, noting \nthat he had not reached maximum medical improvement (MMI). (Resp. Ex. \n1, P. 12). \n The claimant returned to Dr. Cassat on September 27, 2022. (Resp. \nEx. 1, P. 16). Dr. Cassat’s report stated: \nOur discussion today was that [the \nclaimant] continues to have \nsignificant axial pain with activity \nhas failed conservative treatment \nmeasures, cannot tolerate anti-\ninflammatories and is not currently \nable to go off of anticoagulation \neven with bridging for medial \nbranch blocks or a rhizotomy.  At \nthis point have no further treatment \noptions for him, he understands \nthis.  He will continue to work on \nbeing as active, he will follow up \nwith me if he would like to proceed \nwith intervention in the future.  He \nstates that he will never get off of \nanticoagulation secondary to \nstroke risk.  He is at MMI with 0% \npermanent impairment rating.  He \nhas no work restrictions.  He can \nfollow up with me as needed. \n(Resp. Ex. 1, Pp. 16-17). \n\nOLIVER - H204215  7\n  \n \n \n \n The claimant obtained a change of physician order through the \nCommission on December 5, 2022, which was amended on December 9, \n2022, and transferred his care from Dr. Cassat to Dr. Ali Raja of \nNeurosurgery Specialists of Arkansas, who took over the claimant’s care on \nDecember 15, 2022.  (Cl. Ex. 1, Pp. 19-21).  Dr. Raja reviewed the \nclaimant’s radiological studies, stating that “MRI of the lumbar spine without \ncontrast done 7/28/2022 at UAMS showed mild lumbar spondylosis at L3-\nL4, L4-L5, and L5-S1 without significant spinal canal stenosis or \nneuroforaminal stenosis.  There is a disc bulge at L4-L5 that contacts but \ndoes not displace the transiting left L5 nerve root in the lateral recess.” \n(Resp. Ex. 1, P. 20).  The December 15, 2022 report further states: \nI personally reviewed outside \nrecords from the referring \nphysician as well as the patient’s \npast medical, surgical, family, and \nsocial history and current \nmedications in clinic today.  I also \npersonally reviewed the patient’s \nradiological images and imaging \nreports in clinic today and \ncorrelated these with the patient’s \ncurrent symptoms and exam \nfindings to formulate the plan of \ncare. \n \nI had a detailed discussion with the \npatient regarding findings of the \nhistory and physical examination \nand radiological studies.  We \ndiscussed the need for lifestyle \n\nOLIVER - H204215  8\n  \n \n \nmodifications including the need to \nbe careful with no excessive \npushing, pulling, bending, weight \nlifting, strenuous activities and not \nlifting anything more than 5-10 \npounds. \n \nWe also discussed management \noptions and plans including \nsurgical versus nonsurgical \nmeasures. We discussed the \nfinding of multilevel degenerative \nchanges without definite neural \ncompromise or evidence of \nfracture on the patient’s most \nrecent MRI of the lumbar spine \ndone 7/28/22 and my \nrecommendation not to proceed \nwith any neurosurgical intervention \nat this time. \n \nWe discussed the option for \noutpatient physical therapy for \ngentle muscle strengthening \nexercises for 6-8 weeks, but he \nsaid he has already done multiple \nsessions without benefit.  (Cl. Ex. \n1, Pp. 20-21). \n \n Dr. Raja later referred the claimant to Dr. Kenneth Rosenzweig to be \nevaluated for an impairment rating on May 9, 2023.  (Cl. Ex. 1, Pp. 22-23).  \n In an order dated September 28, 2023, an administrative law judge \n(ALJ) ruled that the claimant is entitled to additional medical treatment in \nthe form of a referral to Dr. Rosenzweig for the purposes of determining \nwhether he should be assigned a permanent impairment rating.  \n\nOLIVER - H204215  9\n  \n \n \nThe sole question here is whether the claimant is entitled to \nadditional medical treatment related to his compensable low back injury. \nArkansas Code Annotated section 11-9-508(a) (Repl. 2012) requires an \nemployer to provide an employee with medical and surgical treatment \"as \nmay be reasonably necessary in connection with the injury received by the \nemployee.\"  The claimant has the burden of proving by a preponderance of \nthe evidence that the additional treatment is reasonable and necessary. \nNichols v. Omaha Sch. Dist., 2010 Ark. App. 194, 374 S.W.3d 148 (2010). \nWhat constitutes reasonably necessary treatment is a question of fact for \nthe Commission.  Gant v. First Step, Inc., 2023 Ark. App. 393, 675 S.W.3d \n445 (2023).  In 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). \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 \n\nOLIVER - H204215  10\n  \n \n \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 his opinion, the ALJ appears to rely on a single discrepancy in \ndisregarding Dr. Cassat’s impairment rating: one line in the Augst 9, 2022 \nreport that states the claimant “returns today to review his lumbar spine MRI \nwhich shows some small disc herniations” rather than the “[m]ild diffuse \ndisc bulge[s]” found in the claimant’s MRI. (Resp. Ex. 1, Pp. 9-11).  This, \nhowever, ignores the fact that the claimant continued treating with Dr. \nCassat after that date before being released at MMI, and the claimant \nwould later be treated by Dr. Ali Raja, who personally reviewed the \nclaimant’s medical records and noted no issues with this so-called \ndiscrepancy.  The ALJ did not weigh the opinions of Drs. Cassat and Raja \nagainst the facts at hand and arbitrarily rejected Dr. Cassat’s opinion.  Dr. \nCassat treated the patient soon after his initial injury and for a period of \nnearly four months before releasing the claimant at MMI when Dr. Raja \nevaluated the claimant on a single occasion once it was clear that surgical \nintervention was not an option.  \n\nOLIVER - H204215  11\n  \n \n \nFurther, the only difference between Dr. Cassat and Dr. Raja’s \nopinions on the claimant’s treatment is that Dr. Raja, for reasons unknown, \nbelieves that the claimant should undergo an additional evaluation for \npermanent impairment.  The claimant has already undergone this \nevaluation with Dr. Cassat and received a 0% impairment rating.  There \nwere no changes in the record to the claimant’s treatment plan or physical \nsymptoms between the date of Dr. Cassat’s impairment rating and Dr. \nRaja’s referral request.  Dr. Raja did nothing to treat the claimant, as the \nclaimant rejected the available options.  Dr. Raja did not provide any reason \nwhy he believes that an additional evaluation is necessary or relevant. \nAdditionally, the claimant exhausted his change of physician request when \nchanging to Dr. Raja’s care, and it is unreasonable to introduce a third \nphysician to provide information that is already available.  \nThe claimant’s request to be evaluated by Dr. Rosenzweig is both \nunnecessary and unreasonable as it will not provide any greater information \nabout the claimant’s care or treatment. For the reasons set forth above, I \nmust dissent. \n \n                                       _____________________ \n    MICHAEL R. MAYTON, Commissioner","preview":"NOT DESIGNATED FOR PUBLICATION BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H204215 RICHARD G. OLIVER, EMPLOYEE CLAIMANT ARKANSAS DEPARTMENT OF ENVIRONMENTAL QUALITY, EMPLOYER RESPONDENT PUBLIC EMPLOYEE CLAIMS DIVISION, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MARCH 21, 2024 Upon review before t...","fetched_at":"2026-05-19T22:29:45.889Z","links":{"html":"/opinions/full_commission-H204215-2024-03-21","pdf":"https://labor.arkansas.gov/wp-content/uploads/Oliver_Richard_H204215_20240321.pdf","source_publisher":"https://labor.arkansas.gov/workers-comp/awcc-opinions/full-commission-opinions/"}}