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Wright v. Conway Freight

Court of Appeals of Arkansas, Division II

September 10, 2014

ARON WRIGHT, APPELLANT
v.
CONWAY FREIGHT AND CONSTITUTION STATE SERVICES, APPELLEES

Page 46

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION. NO. G108178.

Moore, Giles & Matteson, LLP, by: Greg Giles, for appellant.

Friday, Eldredge & Clark, LLP, by: Guy Alton Wade, for appellees.

PITTMAN and WHITEAKER, JJ., agree.

OPINION

Page 47

ROBERT J. GLADWIN, Chief Judge.

Aaron Wright appeals the portion of the January 6, 2014 decision of the Arkansas Workers' Compensation Commission denying compensability for his back injury, arguing that the Commission's order was not supported by substantial evidence and that his due-process rights had been violated by the Commission's credibility determination. On cross-appeal, appellees Conway Freight, Inc. (Conway), the employer, and Constitution State Services, the insurance carrier, argue that appellant was not entitled to additional medical treatment for his knee. We affirm.

Appellant began working for Conway as a delivery driver in 2010. On March 2, 2011, appellant was attempting to move a pallet of freight weighing over four--thousand pounds to the back of his delivery truck when the pallet weight shifted, causing appellant's right knee to be pinned against the trailer. After a course of conservative treatment, Dr. Darius Mitchell took appellant off work and performed right-knee surgery on September 23, 2011. When appellant was released by Dr. Mitchell to return to work on November 30, 2011, Conway fired him for reasons connected to a customer complaint prior to his injury.

In February 2012, Dr. Mitchell recommended that appellant see Dr. Khan, a chiropractor, for sciatica symptoms, stating in his examination of appellant on February 15, 2012:

He has full range of motion in his knee. Stable to varus and vagus stressing. No effusion. No tenderness over his anterior middle or posterior medial and lateral joint line. I think at this point he has reached MMI. He is now having sciatica. I do not know if this is from an altered gait.

However, appellant was never treated by Dr. Khan. Dr. Richard B. Sharp evaluated appellant for maximum medical improvement and impairment rating and opined that appellant was at MMI on February 15, 2012, and should receive a four-percent impairment rating to the whole person or a ten-percent lower-extremity impairment rating.

Appellant went to work for FedEx Ground in March 2012. In response to an April 12, 2012 written inquiry from the claim representative then handling appellant's case, Dr. Mitchell checked " yes" to the question, " In your medical opinion would you say that Mr. Wright's sciatica pain resulted from the injury to his right knee?"

After Dr. Mitchell rendered his opinion, appellees referred appellant on May 4, 2012, to Ark-La-Tex Chiropractic for twelve visits. Dr. James Raker's office performed an intermittent course of chiropractic treatment, allowing for appellant's work schedule with FedEx. Dr. Raker also ordered an MRI and later an electro-diagnostic study. Appellees paid for the

Page 48

MRI and the electro-diagnostic study, and initially pre-authorized an epidural steroid injection.

On July 26, 2012, August 9, 2012, and August 17, 2012, Dr. Raker informed appellant that he should not go to work and noted that appellant had been " put on temporary total disability." Dr. Raker's plan was to begin a course of three chiropractic treatments per week. Shortly thereafter, appellees advised Dr. Raker in writing on August 17, 2012, that any further treatment for appellant's low back would no longer be covered by workers' compensation based on the current diagnosis regarding his low back versus the reported compensable injury involving his right knee.

Appellant filed a workers' compensation claim on August 30, 2012, seeking benefits from August 10, 2012, until he obtained a release to return to work on or about September 22, 2012. Appellant also sought payment of a pharmacy bill for three prescriptions of Arthrotec, filled after appellees denied further liability. Appellees argued that appellant's complaints were the result of a preexisting condition or injury and not a work injury. They also argued that treatment was terminated after the electro-diagnostic study failed to show clear cut radiculopathy. Appellees contended that the opinions of Dr. Raker and Dr. Mitchell were not stated within a reasonable degree of medical certainty, that Dr. Raker had failed to indicate that appellant's symptoms were in the L5 dermatome or were consistent with the L5 nerve-root impingement allegedly indicated by EMG testing. Appellees claimed that it was not until appellant was released and determined to be at MMI for his knee that numbness became an issue, and by that time appellant was already working for a new employer.

The administrative law judge (ALJ) issued his opinion on July 15, 2013, finding that appellant had proved by a preponderance of the credible evidence each of the requirements necessary to establish that he sustained an impingement injury to his right L5 nerve root in his low back on March 2, 2011. The ALJ relied heavily on the electro-diagnostic study performed on July 26, 2012, which documented evidence " of a mild right L5 proximal nerve root impingement with denervation noted in the posterior tibialis." The ALJ found that the abnormality with the right L5 nerve root was causally related to the pallet incident that occurred on March 2, 2011. Further, the ALJ held that appellant was entitled to temporary total disability from August 10, 2012, through September 21, 2012. Finally, the ALJ awarded appellant his request for repayment of the outstanding pharmacy bill and " appropriate future medical treatment including but not limited to a return to Dr. Raker to determine whether Mr. Wright is at maximum medical improvement, and if not, the proper course of future care for Mr. Wright's compensable back injury."

The Commission reversed the ALJ's decision by an opinion filed on January 6, 2014. The Commission found that appellant did not prove by a preponderance of the evidence that he sustained a compensable injury to his back, but that he was entitled to additional medical treatment for the compensable injury to his right knee. The Commission ...


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