Marion Pederson vs. Optum Care, Inc

BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. H202890 MARION PEDERSON, EMPLOYEE CLAIMANT OPTUM CARE, INC., EMPLOYER RESPONDENT FARMINGTON CASUALTY COMPANY/ SEDGWICK CMS, INSURANCE CARRIER/TPA RESPONDENT OPINION FILED MAY 13, 2025 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE LAURA BETH YORK, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE RANDY P. MURPHY, Attorney at Law, Little Rock, Arkansas. Decision of Administrative Law Judge: Reversed. OPINION AND ORDER The respondents appeal an administrative law judge’s opinion filed November 20, 2024. The administrative law judge found that the claimant proved she was entitled to permanent partial disability benefits “in the amount of 7% to the body as a whole.” After reviewing the entire record de novo, the Full Commission finds that the claimant did not prove by a preponderance of the evidence that she sustained a permanent anatomical impairment as a result of the compensable injury. I. HISTORY

PEDERSON - H202890 2 The record indicates that Marion Hartwick Pederson, now age 73, treated with Dr. Tanner Coleman, D.C. at Beemer Back Center beginning in about July 2011. The claimant complained of “Low back pain going into right buttock.” The claimant’s chiropractic treatment included “manipulation to the cervical region[.]” The claimant scheduled approximately two weekly visits with the chiropractor over a course of several years. It was noted at NWA Neurosciences Pain Management in May 2020, “The patient is being seen for a routine clinic follow-up of neck pain....New complaint of neck pain. She has had some neck issues 6 years ago on the left side. Very painful to turn her head.” An “Active Problems” list at that time included “2. Bulge of cervical disc without myelopathy....3. Cervical spondylosis.” Dr. Brent Weilert performed a Trigger Point Injection. The claimant’s testimony indicated that she became employed as a Radiologic Technologist with the respondents, Optum Care, Inc. in about January 2020. The claimant testified that she sustained an accidental injury on April 4, 2022: “I was doing a shoulder x-ray on a patient and I had already done two views....[S]he just all of a sudden out of the blue totally fainted and went limp. So I grabbed her head so she wouldn’t crack it open on the concrete floor and what it did, it knocked us....I fell 90 degrees to the floor sideways without being able to put my arms out or anything to catch my fall because I held her head. She did not get hurt at all, but I got hurt.”

PEDERSON - H202890 3 The parties stipulated that the claimant “sustained a compensable injury to her right hip, low back, and cervical/neck.” The record contains a note dated on or about April 4, 2022: “[T]he employee states she was doing an upright shoulder xray. States the patient fainted. The employee reports the patient fell on her. She reports they fell flat to the floor, sideways. States she hit the floor on the right hip.” The chiropractor noted in part on April 5, 2022, “The neck pain on both sides is considerably worse since the last treatment, the mid back pain is considerably worse since her last treatment, and the low back pain is a slight worsening of the condition since the last visit.” An x-ray of the claimant’s cervical spine was taken on May 2, 2022: BONES: No acute fracture or aggressive appearing osseous lesion. Vertebral body height are (sic) maintained. Atlantoaxial relationship with intact (sic). DISCS/DEGENERATIVE CHANGES: Mild disc space narrowing is seen at C4/C5 and C5-C6 with small osteophyte formation. Posterior vertebral body alignment is within normal limits. SOFT TISSUES: No prevertebral soft tissue swelling. The visualized lung apices are clear. IMPRESSION: No acute cervical spine abnormality. Minimal degenerative disc disease. The claimant was evaluated for physical therapy on May 10, 2022: “Injured Worker reports an injury to R hip, low back, and L neck while a patient fainted from a standing position and she held the patient and she fell directly onto her R side without being able to put her arms out to brace her

PEDERSON - H202890 4 fall....We will develop a home exercise program.” The record indicates that the claimant subsequently underwent a large number of physical therapy visits. An MRI of the claimant’s cervical spine was taken on May 13, 2022 with the impression, “Multilevel cervical spondylosis, worst at the C3-4 through C6-7 levels.” An MRI of the claimant’s cervical spine was apparently taken on or about May 16, 2022 and showed “Moderate to Severe arthritic changes noted.” Candace Harper, P.A. reported on June 1, 2022: Patient presents for evaluation of her cervical spine. She had a work related injury 2 months ago when a patient passed out while getting xrays and she cradled the patient’s head, and fell laterally to the floor. Has neck pain. Cervical MRI reviewed showing multilevel degenerative changes with disc/osteophyte causing canal stenosis worse at C5-6. I measure a 7.6 mm canal. She is currently in physical therapy. Recommend she continue this. Will review imaging w/Dr. Armstrong as well given her hyperflexia which may be her normal. I will call once he has reviewed imaging. Pt. agrees w/plan. Ms. Harper assessed “1. Neck pain,” “2. Work related injury,” and “3. Cervical spondylosis.” An MRI of the claimant’s cervical spine was taken on November 28, 2022, with the following impression: 1. MULTILEVEL CERVICAL SPONDYLOSIS WITH MODERATE CANAL STENOSIS AT C4/5 AND C5/6.

PEDERSON - H202890 5 2. SEVERE BILATERAL NEURAL FORAMINAL NARROWING AT C3/4, SEVERE RIGHT NEURAL FORAMINAL NARROWING AT C4/5 AND SEVERE BILATERAL NEURAL FORAMINAL NARROWING AT C5/6. Dr. Owen L. Kelly corresponded with the respondents’ attorney on March 23, 2023 and reported in part: Ms. Pederson has a degenerative disc disease of the cervical spine confirmed by objective imaging. She may have sustained a cervical sprain/strain at the time of the accident, but no identifiable injury is noted. Her functional and neurologic status are normal. The degenerative findings are not related the the (sic) 4/4/21 accident.... Ms. Pederson has reached maximum medical improvement as it relates to the 4/4/21 accident.... No impairment rating would be associated with the 4/4/21 accident. An x-ray of the claimant’s cervical spine was taken on May 22, 2023 with the impression, “NO ACUTE OSSEOUS ABNORMALITY. MULTILEVEL CERVICAL SPONDYLOSIS WITH INTERVERTEBRAL DISC SPACE NARROWING WORST AT C4-5 AND C5-6.” On October 16, 2023, Dr. David Knox completed a questionnaire provided by the claimant’s attorney. Dr. Knox opined that the claimant had reached maximum medical improvement. Dr. Knox opined that the claimant had sustained a 7% whole-body impairment rating. Dr. Knox reported on October 17, 2023: Patient 1 and half years status post work comp injury continuing difficulty with cervical radiculopathy. Reviewed MRI scan demonstrating significant disc herniation on the right

PEDERSON - H202890 6 at C4-5 C5-6. I informed her that surgical options do exist. She wants to settle her course a (sic) filled out her paperwork recommended that she close her case she would qualify for a 7% permanent partial disability.... A pre-hearing order was filed on June 26, 2024. The claimant contended, “The claimant contends that as a result of her compensable injury of April 4, 2022, she is entitled to permanent partial disability benefits based on a 7% rating to the body as a whole, interest, and an attorney’s fee. Claimant reserves all other issues.” The respondents contended, “The respondents controvert the 7% impairment assigned by Dr. Knox.” The parties agreed to litigate the following issues: 1. Claimant’s entitlement to permanent partial disability benefits based on a 7% rating assigned by Dr. Knox. 2. Interest. 3. Attorney fee. After a hearing, an administrative law judge filed an opinion on November 20, 2024. The administrative law judge found that the claimant proved she was “entitled to payment of permanent partial disability benefits in an amount equal to 7% to the body as a whole as a result of her compensable cervical injury.” The administrative law judge determined that the respondents were “liable for payment of permanent partial disability benefits in an amount equal to 7% to the body as a whole.” The respondents appeal to the Full Commission. II. ADJUDICATION

PEDERSON - H202890 7 Permanent impairment is any functional or anatomical loss remaining after the healing period has been reached. Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). The Commission has adopted the American Medical Association Guides to the Evaluation of Permanent Impairment (4 th ed. 1993) to be used in assessing anatomical impairment. See Commission Rule 34; Ark. Code Ann. §11-9-522(g)(Repl. 2012). It is the Commission’s duty, using the Guides, to determine whether the claimant has proved she is entitled to a permanent anatomical impairment. Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001). Any determination of the existence or extent of physical impairment shall be supported by objective and measurable physical findings. Ark. Code Ann. §11-9-704(c)(1)(B)(Repl. 2012). Objective findings are those findings which cannot come under the voluntary control of the patient. Ark. Code Ann. §11-9-102(16)(A)(i)(Repl. 2012). Although it is true that the legislature has required medical evidence supported by objective findings to establish a compensable injury, it does not follow that such evidence is required to establish each and every element of compensability. Stephens Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). All that is required is that the medical evidence be supported by objective findings. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709 (2006).

PEDERSON - H202890 8 Medical opinions addressing impairment must be stated within a reasonable degree of medical certainty. Ark. Code Ann. §11-9-102(16)(B)(Repl. 2012). 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(F)(ii)(a)(Repl. 2012). “Major cause” means “more than fifty percent (50%) of the cause,” and a finding of major cause shall be established according to the preponderance of the evidence. Ark. Code Ann. §11-9-102(14)(Repl. 2012). Preponderance of the evidence means the evidence having greater weight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). An administrative law judge found in the present matter, “3. Claimant has met her burden of proving by a preponderance of the evidence that she is entitled to payment of permanent partial disability benefits in an amount equal to 7% to the body as a whole as a result of her compensable cervical injury.” The Full Commission finds that the claimant did not prove she sustained a permanent anatomical impairment as a result of the compensable injury. According to the record before the Commission, the claimant began complaining of chronic neck pain no later than 2011. It was reported in 2020 that that the claimant had a “2. Bulge of cervical disc without

PEDERSON - H202890 9 myelopathy.” The claimant was also diagnosed with “Cervical spondylosis” in 2020. The claimant’s testimony indicated that she became employed with the respondents in about January 2020. The claimant testified that she sustained an accidental injury on April 4, 2022. The claimant testified that she fell while holding a patient who had fainted. The parties stipulated that the claimant “sustained a compensable injury to her right hip, low back, and cervical/neck." An x-ray of the claimant’s cervical spine taken May 2, 2022 showed “No acute cervical spine abnormality [emphasis supplied]. Minimal degenerative disc disease.” An MRI of the claimant’s cervical spine was taken on May 13, 2022 with the impression, “Multilevel cervical spondylosis, worst at the C3-4 through C6-7 levels.” An MRI of the claimant’s cervical spine on or about May 16, 2022 showed “Moderate to Severe arthritic changes[.]” A physician’s assistant reported on June 1, 2022 that a cervical MRI showed “multilevel degenerative changes with disc/osteophyte causing canal stenosis worse at C5-6.” An MRI of the claimant’s cervical spine on November 28, 2022 confirmed, among other things, “Multilevel cervical spondylosis.” Dr. Kelly opined on March 23, 2023 that the claimant had reached maximum medical improvement. Dr. Kelly opined, “No impairment rating would be associated with the 4/4/21 accident.” An x-ray of the claimant’s

PEDERSON - H202890 10 cervical spine was taken on May 22, 2023 with the impression, “NO ACUTE OSSEOUS ABNORMALITY.” Yet Dr. Knox opined on October 17, 2023 that the claimant had sustained a herniated disc, and that the claimant was therefore entitled to a 7% permanent anatomical impairment rating. It is the Full Commission’s duty to translate the evidence of record into findings of fact. Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820 S.W.2d 475 (1991). It is within the Commission’s province to weigh all of the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. App. 94, 989 S.W.2d 151 (1999). In the present matter, the Full Commission finds that Dr. Kelly’s opinion is credible and is entitled to more evidentiary weight than Dr. Knox’s opinion. The evidence does not demonstrate that the claimant sustained a herniated disc as a result of the compensable injury sustained on April 4, 2022. The Commission reiterates that an x-ray of the claimant’s cervical spine taken on May 2, 2022 showed “No acute cervical spine abnormality.” Subsequent diagnostic testing revealed degenerative spondylosis with no probative evidence demonstrating that the claimant sustained a herniated cervical disc as a result of the April 4, 2022 compensable injury. The evidence of record corroborates Dr. Kelly’s expert opinion, “No impairment would be associated with the 4/4/21 accident.

PEDERSON - H202890 11 The Full Commission finds that the claimant did not sustain any percentage of permanent anatomical impairment as a result of the April 4, 2022 compensable injury. The claimant did not prove that she sustained permanent anatomical impairment in accordance with the 4 th Edition of the Guides, and the claimant did not prove she sustained permanent anatomical impairment established by objective or measurable physical findings. The claimant did not prove that the compensable injury was the major cause of any percentage of permanent physical impairment. The Full Commission finds that Dr. Kelly’s opinion is entitled to significant evidentiary weight and Dr. Knox’s opinion is entitled to minimal evidentiary weight. After our de novo review of the entire record, therefore, the Full Commission reverses the administrative law judge’s award of 7% permanent anatomical impairment. The claimant did not prove by a preponderance of the evidence that she sustained any percentage of permanent physical impairment as a result of the compensable injury, and this claim is respectfully denied and dismissed. IT IS SO ORDERED. ___________________________________ SCOTTY DALE DOUTHIT, Chairman ___________________________________ MICHAEL R. MAYTON, Commissioner Commissioner Willhite dissents.

PEDERSON - H202890 12 DISSENTING OPINION The Respondent appeals an administrative law judge (hereinafter referred to as “ALJ”) opinion filed November 20, 2024. The ALJ found that the Claimant proved she was entitled to permanent partial disability benefits “in the amount of 7% to the body as a whole.” After reviewing the entire record de novo, I would agree with the ALJ’s findings and dissent with the majority finding that the Claimant did not prove she was entitled to permanent partial disability benefits. The Claimant sustained an admittedly compensable injury to her right hip, low back and cervical spine on April 4, 2022. At that time the Claimant was performing an x-ray on a patient when the patient “fainted and went limp.” The Claimant attempted to catch the patient and fell on the floor on the right side of her body. The Claimant received treatment for her compensable injuries which included medications, injections and physical therapy. At some point prior to March 23, 2023, Dr. Owen Kelly, a board- certified orthopedic surgeon, was hired by the Respondent to review the Claimant’s medical records. Dr. Kelly found the Claimant to be at maximum medical improvement and anticipated that no future treatment would be necessary for the Claimant’s neck and hip injuries. Although Dr. Kelly’s credentials as an orthopedic surgeon qualify him to provide insight, I do note

PEDERSON - H202890 13 that his evaluation refers to a date of injury that was one year prior to the actual work accident in question. It appears that shortly after Dr. Kelly’s report, Claimant exercised her one time right to a change of physician. On August 24, 2023, Claimant was seen by Dr. Luke Knox, a board-certified neurosurgeon, who reviewed her history, medical records, and diagnostic tests including an MRI. Following his examination and review, Dr. Knox assessed the Claimant as suffering from cervical disc disorder with radiculopathy, cervical spondylosis, cervical stenosis of the spinal canal, and chronic right shoulder pain. The Claimant was again seen by Dr. Knox on October 17, 2023, at which time Dr. Knox identified cervical disc herniations at C4-5 and C5-6. Dr. Knox stated that surgical options were available for this injury, and that physical therapy was recommended. Apparently, the insurance carrier refused to provide this treatment. Considering these factors and the Claimant’s stated desire to settle her claim, Dr. Knox then assessed permanent impairment of 7% to the body as a whole. It appears that this rating, as well as confirmation of maximum medical improvement, work restrictions, and reasonable certainty of the opinions was previously addressed in correspondence between Dr. Knox and counsel for Claimant on or about August 30, 2023. The primary issue to be resolved relates to the assessment of Claimant’s cervical condition by Dr. Kelly versus the assessment by Dr. Knox.

PEDERSON - H202890 14 When medical opinions conflict, the Commission may resolve the conflict based on the record as a whole and reach the result consistent with reason, justice, and common sense. Barksdale Lumber v. McAnally, 262 Ark. 379, 557 S.W.2d 868 (1977). It is within the Commission’s province to weigh all of the medical evidence and to determine what is most credible. Minnesota Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). Ark. Code Ann. §11-9-102(4)(Repl. 2012) provides, in pertinent part: (F)(ii)(a) Permanent benefits shall be awarded only upon a determination that the compensable injury was the major cause of the disability or impairment. “Major cause” means “more than fifty percent (50%) of the cause,” and a finding of major cause shall be established according to the preponderance of the evidence. Ark. Code Ann. §11-9-102(14)(Repl. 2012). Preponderance of the evidence means the evidence having greater weight or convincing force. Metropolitan Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003). The Claimant was injured on April 4, 2022, when a patient fell on her as she was conducting an x-ray. The pre-hearing Order states that the parties agreed that the Claimant sustained compensable right hip, low back, and cervical/neck injuries as the result of this work accident. The medical notes dated April 7, 2022, reveal symptoms including left-sided neck pain. The Claimant was seen again on April 18, 2022, and complained of constant

PEDERSON - H202890 15 cervical pain with radiating symptoms into her left upper extremity. As the cervical treatment continued the Claimant’s pre-existing problems were noted, with indications of the progression of her symptoms and restrictions. An MRI was conducted on May 13, 2022, which revealed abnormalities at several levels of the Claimant’s cervical spine. During a medical appointment on May 25, 2022, the Claimant reported numbness in the 4 th and 5 th digits of the right hand and was referred for a neurosurgical consult. Claimant exercised her one-time right to change her physician began treatment with Dr. Knox. Dr. Knox found that the Claimant was at maximum medical improvement and was entitled to an impairment rating of 7% to the body as a whole. Dr. Kelly did not treat the Claimant and only reviewed the medical records. Based upon the qualifications of Dr. Knox as a neurosurgeon, the multiple personal visits and evaluations he provided, the treatment he recommended and the clear reason for his assessment of permanent impairment, I find his opinion regarding impairment to be entitled to more weight than the opinion of Dr. Kelly. Therefore, I would rule in favor of the Claimant and find that the Claimant is entitled to a 7% impairment rating to the body as a whole, and dissent with the majority. ___________________________________ M. SCOTT WILLHITE, Commissioner