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Jones v. Target Corporation

Court of Appeals of Arkansas, Division III

March 29, 2017



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

          Friday, Eldredge & Clark, LLP, by: Guy Alton Wade and Phillip M. Brick, Jr., for appellees.

          WAYMOND M. BROWN, Judge

         Appellant appeals from the Arkansas Workers' Compensation Commission's (Commission) June 3, 2016 opinion affirming and adopting the November 4, 2015 opinion of the administrative law judge (ALJ) in which the ALJ found that appellant failed to meet her burden of proving that she is entitled to additional medical treatment as recommended by Dr. James Blankenship. Appellant's sole argument on appeal is that the Commission's opinion is not supported by substantial evidence and that she is entitled to additional treatment. We affirm.

         On August 17, 2013, appellant, a fifty-nine-year-old woman, had an accident in which she suffered a compensable injury-hitting her head and falling onto her back-while employed with appellee. The parties stipulated that as a result of that accident, appellant had an injury to her head, neck, and low back. Appellant did not seek treatment on the day of her injury and went to work the next day.

         Appellant visited Dr. Daniel Burkeat the Family Medical Walk-In Clinic (FMW) on August 20, 2013. She complained of "throbbing at [her] frontal lobe and posterior head"; "numbness" at [her] posterior head, which was "worsening"; "dizziness, described as 'lightheadedness'[, ]" which was "worsening"; "muffled" hearing; nausea; visual changes, which were "new"; and "left side thoracic and lumbar pain as well as pain in right thigh." She was sent to the emergency room where she was diagnosed with post-concussion syndrome.[1] Though her chief complaint was the fall, the comment section stated that she "fell 3 days ago from standing position, hit back of head, possible loss of consciousness, visual disturbances today, headache, and dizziness." The sole point of impact listed was the head. There was no mention of back pain.

         Following her August 20, 2013 emergency room visit, appellant returned to FMW on August 26, 2013, where she was taken off work from August 26, 2013, to August 28, 2013. She returned to FMW on August 28, 2013, stating that "she had pain in her left buttocks and hip the night before last." Appellant was taken off work from August 28, 2013, to September 2, 2013. Appellant returned to FMW on September 2, 2013, complaining of "[s]till having neck and low back pain[, ]" with her low back pain rated as "currently 3/10 but can be severe at times" and being "worse at night." She was taken off work again, this time from September 2, 2013, to September 6, 2013. Appellant was then referred to Dr. Michael Morse by Dr. Burke, whom she visited on September 6, 2013.

         Dr. Morse's impression when she visited with him included a recommendation of physical therapy. In his September 16, 2013 visit with appellant, he stated that she will "benefit from skilled PT to address her pain and dysfunction associated with this fall and resultant pain and discomfort." He prescribed twenty-four physical therapy visits. Appellant's first physical therapy session was on September 18, 2013. Notes show that appellant "responded reasonably well" to the session and that the physical therapist "reported seeing nothing at this time that should prevent pt. from performing essential job functions." Accordingly, appellant was returned to regular work duty.[2]

         At her September 20, 2013 physical therapy session, appellant reported having been involved in a motor vehicle accident (MVA) within an hour of completing her September 18, 2013 session. She stated that her "back is even more flared up" and that she thought her "tailbone needs to be xrayd [sic] to see if there is a fracture." Despite increased pain in the "LB/sacrum with pressure during exercises and manual therapy[, ]" appellant "responded well" to the session. Appellant reported her lower back being "a little better" on September 23, 2013, and that the "last treatment helped a lot" though she still experienced pain when sitting. She was again assessed as responding "reasonably well" to treatment, though she still had "c/o increased pain in the LB and neck[.]" At her September 25, 2013 session, she reported that her tailbone had been "very painful the last few days" and that her "mid-thoracic started hurting a lot yesterday[.]" She reported being "jolted in the car wreck" and thinking she needed another x-ray. At her September 27, 2013 session, she stated that her tailbone hurt and her lower back pain was "6/10." It was noted that her "mobility [was] with decreased pain and difficulty[.]" Appellant was discharged from physical therapy on October 15, 2013, after only six sessions, "because she [had] stopped coming to physical therapy."

         Notes from her October 22, 2013 visit with Dr. Morse state that appellant had "good mobility of her lumbar spine" and stated that, despite her worry that she might have a herniated disc, "clinically she [did] not have a disc herniation." Dr. Morse specifically stated he saw no need for any imaging procedures "[a]s long as she continues to improve" and he wanted more physical therapy on her lumbar spine. In his November 19, 2013 notes, Dr. Morse stated that appellant's "pain overall [was] improving[.]" He found that she had reached maximum medical improvement as she was "back to work with no restrictions." Dr. Morse stated that "[n]o additional evaluation or therapy on [his] part [was] necessary."

         Appellant received no medical treatment for her back pain between November 19, 2013, and March 16, 2015, the date on which she visited Dr. Blankenship. At that visit, she complained of the following:

Patient is in today for evaluation of her pain. She complains of low back pain that radiates bilateral hips, right worse then left. States pain goes into both buttock and down posterior-lateral legs to feet, left greater than right. Complains of numbness and tingling in back. Side lying, sitting and prolonged standing aggravates pain. States has decreased strength in both legs. Denies incontinence. Patient has done PT with Youman in 2013. She reports she was injured on 8/17/13 when she was a cashier at Target and fell back. She had immediate pain.

         Following his examination, from which he derived diagnoses of lumbago/lumbalgia, lumbar/thoracic/lumbosacral radiculopathy, acquired spondylisthesis, and fibromyalgia myalgia and myositis, Dr. Blankenship's March 16, 2015 visit note stated the following:

First of all, I have told the patient that she has essentially had no conservative treatment to date for her lower back. Four to five visits of physical therapy is insignificant. I have recommended that we get her into a comprehensive aggressive and active physical therapy program with the folks at Trinity. I have had them evaluate her today and we will initiate that once authorized. I have recommended we get her in to see Dr. David Cannon for evaluation and treatment, and I have also recommended putting her on scheduled anti-inflammatory dose of Celebrex, as well as Lyrica at 75 mg twice a day and compound cream. I have recommended that she take the compound cream with her to ...

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