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Rodriguez v. Superior Industries & Central Adjustment Co.

Court of Appeals of Arkansas, Division IV

April 27, 2016

FABIO RODRIGUEZ, APPELLANT
v.
SUPERIOR INDUSTRIES and CENTRAL ADJUSTMENT COMPANY, APPELLEES

APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G302911]

Tolley & Brooks, P.A., by: Evelyn E. Brooks, for appellant.

Bassett Law Firm LLP, by: Curtis L. Nebben, for appellees.

WAYMOND M. BROWN, JUDGE.

Appellant appeals from the August 27, 2015 opinion of the Arkansas Workers' Compensation Commission (Commission) affirming the opinion of the administrative law judge (ALJ) that appellant failed to prove his entitlement to additional medical treatment for a compensable low-back injury sustained on January 5, 2013. On appeal, appellant's sole argument is that substantial evidence does not support the Commission's decision that appellant failed to prove that he was entitled to additional medical treatment. We affirm.

Appellant suffered a compensable low-back injury on January 5, 2013.[1] On January 7, 2013, he received treatment from Dr. Konstantin Berestnev, who treated appellant with a shot of Depo-Medrol and a prescription for Nalfon. Dr. Berestnev further recommended stretching exercises for appellant and returned him to work with a lifting restriction of no more than forty pounds. His assessment of appellant found "no acute fractures or dislocations" in appellant's lumbar spine, though lumbar scoliosis was present.

Dr. Berestnev saw appellant again on January 14, 2013.[2] He gave appellant another shot of Depo-Medrol and recommended physical therapy. He noted that appellant had stated that the Nalfon "did not help."

Following a January 28, 2013 examination, Dr. Berestnev reported that appellant said "the pain in his lower back is getting [worse]. Pain radiating down both legs." He assessed appellant as having "back pain with symptoms of nonorganic back pain." He returned appellant to work with a lifting restriction of no more than twenty pounds. Appellant's prescription for Nalfon was continued and physical therapy was ordered; a prescription for Norco was added.

In his January 29, 2013 report following appellant's first physical therapy treatment on the same date, appellant's physical therapist assessed appellant as demonstrating signs "consistent with lumbar strain with radiculopathy and a possible SI joint dysfunction." He opined that appellant "would benefit" from physical therapy. The physical therapist's notes over the next four consecutive sessions stated that appellant respectively "tolerated the treatment fairly well[, ]" "[was] not progressing well with his exercises[, ]" "tolerates [certain] exercises moderately[, ]" and "[was] making very slow progress."

In his February 11, 2013 report, appellant's physical therapist stated that he had "made little progress" with appellant. After his visit with the physical therapist, appellant had an examination with Dr. Berestnev on the same date. Dr. Berestnev reported appellant's statement that he still had pain and that his pain was "not any better" after completing six physical therapy sessions. Dr. Berestnev stated that appellant's "pain is out of proportion to the clinical findings." His notes go on to state that

The patient has what appears to be nonorganic back pain and since he has not improved with physical therapy, we are going to order an MRI of his lower back to look for an organic cause of his back pain. Otherwise, I am going to keep him on medication which, according to the patient helps him.

Dr. Berestnev ordered an MRI, which was performed on February 22, 2013, and revealed the following:

1. MILD DEGENERATIVE CHANGES INVOLVING THE LUMBAR SPINE WITH DISC HERNIATIONS INVOLVING THE L3-4 AND L5-S1 LEVEL.
2. MODERATE CENTRAL CANAL STENOSIS INVOLVING THE L5-S1 LEVEL PREDOMINATELY SECONDARY TO ...

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