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City of El Dorado v. Smith

Court of Appeals of Arkansas, Divisions III & IV

May 10, 2017

CITY OF EL DORADO APPELLANT
v.
RICKEY L. SMITH APPELLEE

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [ N O. G409661

          M. Keith Wren, for appellant.

          F. Mattison Thomas III, for appellee.

          WAYMOND M. BROWN, Judge.

         Appellant appeals from the Arkansas Workers' Compensation Commission's August 31, 2016 opinion affirming and adopting the February 9, 2016 opinion of the administrative law judge (ALJ) in which it found that appellee (1) proved that all the medical treatment of record relating to his compensable back injury was reasonably necessary in connection with the injury received by appellee on December 2, 2014; (2) proved his entitlement to future medical treatment for his back; and (3) remained within his healing period and totally incapacitated to earn wages due to his compensable back injury, so as to entitle him to temporary-total-disability-compensation from December 3, 2014, to a date yet to be determined.[1] On appeal, appellant argues that (1) there are no new objective findings to support the ALJ's opinion that appellee sustained a compensable injury; (2) the finding that appellee remained in the healing period after January 22, 2015, is erroneous; and (3) the award of medical benefits in the form of surgery is not supported by any medical evidence. We affirm.

         Appellee, a fifty-seven-year-old man, worked for appellant for eighteen years. Having had a history of back pain and having "failed 6 Months or [sic] conservative care -, including physical therapy[, ]" appellee underwent orthopedic surgery by Dr. Richard Peek, an orthopedic specialist, on October 15, 2014.[2] His discharge summary states that "[h]e [was] doing well. He ha[d] been walking." His musculoskeletal was "[n]ormal range of motion, [n]ormal strength." He was diagnosed with lumbar spinal stenosis. His symptoms prior to the surgery had been "severe" and "worsening" pain in his "lower back and right lower leg." He had also been having spasms, which were described as "moderate." He was discharged on October 16, 2014, with a follow-up appointment scheduled for November 14, 2014. Dr. Peek's report from the November 14, 2014 visit states that while appellee had a history of moderate spinal stenosis, the problem had "improved[, ]" the frequency was "occasional[, ]" and appellee described the pain as "dull." The tests showed the "fusion in appropriate position with appropriate progress. No metastic or blastic lesions are seen. No new fractures are present[.]" In a letter dated November 18, 2014, Dr. Peek released appellee to return to "regular work" on December 1, 2014. Appellee returned to work on December 1, 2014, and worked without issue.

         On December 2, 2014, appellee was getting out of a company vehicle when he slipped and landed on his left side after stepping on a "loose" foot peg.[3] He complained of back pain, but waited to determine if the pain would subside. He visited Dr. Greg Smart on that same date complaining of "pain of the lower back, some pain radiating into the left leg and some pain radiating into the right leg." Dr. Smart's report on his physical evaluation of appellee stated that "[t]he back reveals a restricted range of motion, forward bending only 30 degrees, lateral bending 10 degrees bilaterally, posterior flexion uncomfortable, and he complains of significant pain. He walks in a slightly stooped over position with complaints of discomfort of the lower lumbar region." Dr. Smart assessed appellant with back pain and bilateral leg pain and temporarily placed appellee on "light-duty."[4]

         In his report from December 8, 2014, Dr. Smart stated the following:

[Appellant] is seen in clinic today for followup. He fell last week. He stood up on a foot peg battery box, slipped and knocked him down. He fell off the truck and has suffered low back pain. Initially had rather severe left leg pain. The right leg was less severe. Today's symptoms mainly involve the lower back, probably more right sided than left sided, some burning sensation into the right leg. He states that the symptoms are very similar to what he had prior to surgery 10/15/14 per Dr. Peek.

         Stating that appellee had "persistent symptoms" that had kept him from work the last six days and noting that appellant was "certainly not able to tolerate regular duties and [was] at risk of performing any work type activity at this point due to the severity of the pain[, ]" Dr. Smart ordered that appellant remain off work until released by Dr. Peek.

         Appellee was seen by Dr. Brent Sprinkle on January 2, 2015, reporting burning and throbbing with radiation to the leg on the right side. The duration of symptoms was reported as three to four weeks. While stating that there was "no erythema, edema, or deformity" in the lumbar spine and that muscle strength is within normal limits, Dr. Sprinkle also stated that "[t]here are Trigger Points palpated in the following muscles: Lumbar Paraspinals Bilaterally." He also stated

This patient has a clear history of chronic low back and leg pain, for which he underwent bilateral L5-S1 foraminotomy and lumbar fusion on October 15 of this year, it is somewhat surprising he was able to return to work so soon after fusion surgery. His work injury is most likely just a [sic] aggravation of a pre-existing problem. I do think the meralgia paresthetica is likely related to his work injury and not necessarily a pre-existing condition[.]

         He gave appellee an injection in his lateral femoral cutaneous nerve. He diagnosed appellee with meralgia paresthetica.[5] Appellee was returned to work with

No lifting greater that 20 pounds. No frequent bending or twisting, no greater than 10 times per shift[.] Work status is more related to his pre-existing spondylolisthesis and surgery, the patient was on work restrictions from Dr. Peek at the time of injury, there are no new work restrictions as a result of his work injury, so future work status I would defer to Dr. Peek.

         Appellee was seen by Dr. Sprinkle on January 22, 2015, reporting back and leg pain.[6] Noting that the injection that he gave appellee at his last visit was "unhelpful" and advising that he "would not repeat" the injection, Dr. Sprinkle stated that there was a lack of need for follow-up care with him due to "[a]ny further care really more [sic] related to [appellee's] pre-existent spondylolisthesis and surgery" and that follow-up would be with Dr. Peek. Dr. Sprinkle released appellee to return to work without restriction as of that date, giving him a "combined 4% whole person impairment rating for the Meralgia paresthetica." He gave no impairment rating for the lumbar spine as he thought "the MRI is consistent with preexisting phenomena."

         Dr. Peek's report from his January 22, 2015 visit with appellee stated that appellee's pain "problem [was] severe" and had "worsened" and the "frequency of pain was persistent." The pain was located in the bilateral lumbar area, right thigh and right leg and was described by appellee as "sharp and stabbing." Though Dr. Peek stated that appellee's "AP and lateral of the spine reveals fusion in appropriate position with appropriate progress[, ]" that "[n]o metastatic or blastic lesions [were] seen[, ]" and that "[n]o new fractures [were] present[, ]" he also found that appellee's paraspinous tone was diminished and he experienced moderate spasms. He excused appellee from work for one month.[7]

         An MRI of the claimant's lumbar spine was performed with and without contrast on that same date. Dr. Michael Kendrick rendered the following impression:

Multilevel degenerative change is associated with postoperative change at L5-S1. At L5-S1 there is no finding of recurrent disc herniation. Degenerative findings at L5- S1 contribute to moderate to severe bilateral foraminal stenoses [sic].

         Also on that same date, the claimant underwent an EMG Study, with the following results:

         Summary/Interpretation:

No electrodiagnostic evidence of a lumbar radiculopathy, peripheral neuropathy, or focal tibial or peroneal nerve entrapment is seen in the extremity tested today. Lateral femoral cutaneous nerve conductions were attempted but not obtainable, this can be a technically difficult nerve to study, its absent response is supportive but does not absolutely confirm meralgia paresthetica as an explanation for the lateral thigh sensory complaints.

         Appellee continued follow-up treatment with Dr. Peek. His February 19, 2015 report stated that appellee's pain problem was "severe" and "[had] not changed." He excused appellee from work duty for three months on April 20, 2015. His July 24, 2015 report stated that appellee's problem was "severe" and "[had] worsened." Appellee received trigger-point injections on all three dates as well as on October 27, 2015.

         Appellant initially stipulated that appellee's injury was a compensable back injury, accepting December 2, 2014, as the date of appellee's injury, and identifying additional benefits, permanent-partial disability once a rating had been given, and attorney's fees as the only issues for the hearing.[8] However, appellant withdrew the stipulation and controverted the claim in its entirety on January 10, 2016, stating that it had accepted and paid Dr. Sprinkle's 4% rating and that it had "gratuitously" paid for appellee's treatment with Dr. Peek for appellee's unrelated pre-existing back problems. It sought "a credit for any and all benefits paid herein." The issues to be litigated were the compensability of appellee's claim; whether he was entitled to additional medical benefits; and whether he was entitled to temporary-total-disability benefits from December 3, 2014, to a date yet to be determined.

         A hearing before the ALJ was held on February 9, 2016. Appellee was the only witness and pertinent testimony not duplicative of information already contained herein was as follows. He had been appellant's employee as a truck driver, which included duties of "[going] back and forth to Little Rock picking up materials and stuff, [doing] road work, [digging] up ditches, [mowing] ditches and [hauling] off materials to dumping places." He had been released to go back to work on December 1, 2014, which he did, and he "felt good when [he] went back" on that date; the day "went well." He was working a job tearing down condemned houses and hauling them to the dump when he stepped out of his truck, fell, and hit his back on the battery box. He was told by the doctor that he was on light duty, but the job "[did] not have light duty[, ]" so he was told to "take off work or have vacation or something like that." Dr. Peek had not yet released appellee to return to work and had told him he would need surgery again.

         Appellee testified that his injury "is in the same area that [he] had problems with when Dr. Peek treated [him] in 2014." His doctor's examinations prior to his surgery "said [his] lower extremity muscle tone [was] normal, but the muscle tone in [his] back [was] diminished on the paraspinals and [he] had spasm." But he was "feeling better" after his surgery, though he was "having weakness and numbness in [his] right thigh, and the pain was radiating to the right back and to the right thigh" on November 14, 2014. He has been put on oxycodone since the December 2, 2014 injury, which Drs. Sprinkle and Peek noted was a new medication. Appellee stated

I was pain free or reduced pain between the time Dr. Peek released me after my surgery and the day I went back to work. I was pain free with no restrictions. I went back to work and got hurt the second day. Since that time, I haven't been pain free at any point.

         He was "not doing well today" as he was "hurting all the time now" and "[did not] know of any jobs that [he could] physically do as a truck driver" for appellant.

         The ALJ filed her opinion of February 9, 2016, finding the following:

4. The claimant proved by a preponderance of the evidence that he sustained a compensable back injury on December 2, 2014.
5. The claimant proved by a preponderance of the evidence that all the medical treatment of record relating to to [sic] his compensable back injury was reasonably necessary in connection with the injury received by the claimant on December 2, 2014. The claimant also proved his entitlement to future medical treatment for his back, including the surgery recommended by Dr. Peek.
6. The claimant has remained within his healing period and totally incapacitated to earn wages due to his compensable back injury, so as to entitle him to temporary total disability compensation from ...

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