Kenneth Brewton vs. May Avenue Plumbing

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 Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE EDDIE H. WALKER, JR., Attorney at Law, Fort Smith, Arkansas. Respondents represented by the HONORABLE MELISSA WOOD, Attorney at Law, Little Rock, Arkansas. Decision of Administrative Law Judge: Affirmed and Adopted. OPINION AND ORDER Respondents appeal and the claimant cross-appeals an opinion and order of the Administrative Law Judge filed March 20, 2025. In said order, the Administrative Law Judge made the following findings of fact and conclusions of law: 1. The stipulations agreed to by the parties at a pre-hearing conference conducted on January 15, 2025, and contained in a Pre-Hearing Order filed that same date are hereby accepted as fact. 2. Claimant has met his burden of proving by a preponderance that he has a 13% impairment rating to the body as a whole for his low back injury.

BREWTON - H003073 2 3. Respondent has controverted claimant’s entitlement to payment of permanent partial disability benefits in an amount equal to 8% to the body as a whole. 4. Respondent is not liable for payment of a late payment penalty. We have carefully conducted a de novo review of the entire record herein and it is our opinion that the Administrative Law Judge's decision is supported by a preponderance of the credible evidence, correctly applies the law, and should be affirmed. Specifically, we find from a preponderance of the evidence that the findings made by the Administrative Law Judge are correct and they are, therefore, adopted by the Full Commission. We therefore affirm the decision of the Administrative Law Judge, including all findings of fact and conclusions of law therein, and adopt the opinion as the decision of the Full Commission on appeal. All accrued benefits shall be paid in a lump sum without discount and with interest thereon at the lawful rate from the date of the Administrative Law Judge's decision in accordance with Ark. Code Ann. § 11-9-809 (Repl. 2012). For prevailing on this appeal before the Full Commission, claimant’s attorney is entitled to fees for legal services in accordance with Ark. Code Ann. § 11-9-715(a)(Repl. 2012). For prevailing on appeal to the Full Commission, the claimant’s attorney is entitled to an additional fee of five

BREWTON - H003073 3 hundred dollars ($500), pursuant to Ark. Code Ann. § 11-9-715(b)(Repl. 2012). IT IS SO ORDERED. _____________________ SCOTTY DALE DOUTHIT, Chairman _____________________ M. SCOTT WILLHITE, Commissioner Commissioner Mayton dissents. DISSENTING OPINION I must respectfully dissent from the majority’s opinion finding the claimant has proven he is entitled to an additional 8% impairment rating to the body as a whole for his low back injury. The claimant sustained a compensable injury to his low back in a January 7, 2020 motor vehicle accident. Three physicians have assigned the claimant different permanent impairment ratings, ranging from zero to thirteen percent. After a hearing, an administrative law judge (ALJ) found the claimant had met his burden of proving that he is entitled to a thirteen percent (13%) impairment rating as assigned by Dr. James Blankenship. Respondents appeal. “A permanent partial disability not scheduled in § 11-9-521 shall be apportioned to the body as a whole, which shall have a value of four

BREWTON - H003073 4 hundred fifty (450) weeks, and there shall be paid compensation to the injured employee for the proportionate loss of use of the body as a whole resulting from the injury.” Ark. Code Ann. § 11-9-522(a). “Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment.” Ark. Code Ann. § 11-9-102(4)(F)(ii)(a). Arkansas Code Annotated § 11-9-102(4)(D) provides that a compensable injury must be established by medical evidence supported by objective findings. An objective finding is defined as a finding which cannot come under the voluntary control of the claimant. Ark. Code Ann. § 11-9-102(16)(A)(i). The claimant was treated by Dr. Edward Saer between April 22, and September 21, 2021. After an April 23, 2021 visit, Dr. Saer reported: Exam was fairly unremarkable when I saw him an MRI done January 11, 2021 shows mild degenerative disc change L2-S1 with no focal herniations or significant stenosis. He has been going to physical therapy and says he is better. His legs are buckling on him. He still has pain on the left when he tries to flex his knee. Sometimes he will get a popping sensation in the left lower back if he is seated and moves his left leg around. I reviewed the PT report from the last visit which was yesterday. He has a lot of questions. I went over his MRI report with him line by line, and also pulled up the actual films and went through them. I

BREWTON - H003073 5 explained that the things we see on MRI are age related, and it is impossible to attribute his pain to one specific finding. I reassured him again that he does not need any surgical treatment for this. The fact that he is improving is a good sign. (Resp. Ex. 1, P. 4). The claimant underwent a functional capacity evaluation (FCE) on September 15, 2021, which Dr. Saer reviewed prior to releasing the claimant at maximum medical improvement (MMI). (See Hrng. Tr., November 13, 2023, p. 14, Resp. Ex. 1, Pp. 13-41). Dr. Saer opined that the claimant’s FCE was considered reliable with 53/53 consistency measures within expected limits and released the claimant at MMI, stating that “[h]is restrictions are within normal limits. He is at MMI and there is no permanent impairment related to his back injury.” (Resp. Ex. 1, P. 9). The respondents later obtained an independent medical evaluation (IME) performed by Dr. Wayne Bruffett on October 18, 2024. Upon examining the claimant and reviewing his imaging, Dr. Bruffett opined: I was able to review the MRI scans. Honestly they look pretty good. He has some mild degenerative changes. On the more recent study he may have a small annular tear at L3- 4. He apparently had a significant injury if he required shoulder surgery. So I would say with a reasonable degree of medical certainty that he did sustain injury to the lumbar spine as described above. However, he was treated non operatively and I can not say that he has a specific herniated nucleus pulposis. And my

BREWTON - H003073 6 opinion that an impairment rating of 5% of the whole person based on the lumbar spine is reasonable. (Resp. Ex. 1, P. 11). The claimant was evaluated by Dr. James Blankenship who, on September 5, 2024, wrote a letter to claimant’s attorney, opining that the claimant has a “grade 1 anterolisthesis at the L4-5 level” and “a posterior disc protrusion at the lumbosacrum,” assigning a thirteen percent (13%) rating to the body as a whole. (Cl. Ex. 2, P. 2). It is within the Commission's province to weigh all the medical evidence, to determine what is most credible, and to determine its medical soundness and probative force. Sheridan Sch. Dist. v. Wise, 2021 Ark. App. 459, 637 S.W.3d 280 (2021). In weighing the evidence, the Commission may not arbitrarily disregard medical evidence or the testimony of any witness. Id. The Commission is not required to believe the testimony of the claimant or any other witness but may accept and translate into findings of fact only those portions of the testimony that it deems worthy of belief. White v. Gregg Agricultural Enterprises, 72 Ark. App. 309, 37 S.W.3d 649 (2001). Of the three physicians who treated, examined, and assigned the claimant an impairment rating, Dr. Blankenship’s findings are clearly in

BREWTON - H003073 7 conflict with the other two specialists who have treated and examined the claimant. Dr. Blankenship’s opinion that the claimant is entitled to a thirteen percent (13%) rating to the body as a whole is unreasonable and disproportionate when weighed against Dr. Saer’s findings that there were no objective findings on which to base an impairment rating, and Dr. Bruffett’s opinion that the claimant potentially sustained a minor tear, which would entitle him only to a five percent (5%) impairment rating. There is no evidence in the record to suggest that the claimant has more than a minor injury coupled with degenerative changes. It is unreasonable to find that the claimant, who has not undergone surgery and who suffers from degenerative changes to his low back, with no clear objective findings, is entitled to a thirteen percent (13%) impairment rating. The clear evidence in the record supports a finding that the claimant is entitled to the five percent (5%) rating previously accepted and paid by the respondents. The claimant has failed to meet his burden of proof to the contrary. Accordingly, for the reasons set forth above, I must dissent. _____________________ MICHAEL R. MAYTON, Commissioner