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Rothrock v. Advanced Environmental Recycling and Crum & Forster

Court of Appeals of Arkansas, Division IV

February 7, 2018

LARRY ROTHROCK, APPELLANT
v.
ADVANCED ENVIRONMENTAL RECYCLING AND CRUM & FORSTER, APPELLEES

         APPEAL FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO. G304507]

          Martin Law Firm, by: Aaron L. Martin, for appellant.

          Barber Law Firm PLLC, by: Michael L. Alexander and Karen H. McKinney, for appellees.

          Whiteaker and Brown, JJ., agree.

          ROBERT J. GLADWIN, Judge.

         Appellant Larry Rothrock appeals the July 24, 2017 opinion of the Arkansas Workers' Compensation Commission (Commission) that affirmed the January 30, 2017 opinion of the administrative law judge (ALJ) ruling that appellant's claim for additional medical treatment after April 4, 2016, was barred by res judicata. Appellant argues that the Commission erred in (1) requiring appellant to prove that res judicata did not bar his claim; (2) ruling that res judicata barred appellant's claim; and (3) finding that substantial evidence supported its finding that res judicata barred appellant's claim. We affirm.

         I. Facts

         On April 30, 2013, appellant sustained a compensable injury to his lower back at work when he was lifting a tub of melted plastic that weighed an estimated forty to fifty pounds. Appellant was initially treated at Arkansas Occupational Health Clinic from May1 through June 6, 2013. He obtained a change of physician to Dr. Michael Morse at Neuroscience Institute on July 23, 2013. Dr. Morse saw appellant on August 19, 2013, and referred him to Dr. Knox at NWA Neurosurgery Clinic. Dr. Knox ordered a bone scan, and appellant returned on September 16, 2013, to review the results. Dr. Knox was unable to recommend any further neurosurgical treatment and assigned appellant a five percent disability rating to the body as a whole.

         Appellant subsequently sought treatment almost two years later at UAMS Family Medical Center on July 10, 2015, for reports of low-back pain. An MRI was ordered on July 31, 2015, and performed at Washington Regional Medical Center on August 9, 2015. Appellant returned on August 17, 2015, and was instructed to follow up with Dr. Knox, which he did on September 29, 2015. Dr. Knox recommended an injection and physical therapy. Appellant returned to Dr. Knox on December 21, 2015, and Dr. Knox recommended continued physical therapy.

         Appellant sought compensation for the 2015 treatment at UAMS and the follow-up treatment with Dr. Knox. Appellee controverted the additional treatment, and a hearing was held on January 5, 2016. The ALJ issued an opinion dated April 4, 2016, denying appellant's claim and specifically ruling that appellant failed to prove that the 2015 treatment was reasonable and necessary. That decision was not appealed.

Dr. Knox corresponded with appellant's attorney on April 14, 2016:
Concerning causation of his continuing difficulties, [appellant] dates them back to the injury occurring on 04/30/13. He has been quite consistent with his continuing difficulties and complaints. I do not believe surgery would be in his best interest. His continuing difficulties, as well as pain and need for continued treatment are due to the above mentioned injury.

         Appellant saw Dr. Knox on June 6, 2016. The history provided on that date was substantially the same as the histories given on September 29, 2015, December 21, 2015, and March 7, 2016. Dr. Knox reported on June 6, 2016,

We discussed the possibility of surg. He assured me he is quite motivated to avoid surg. He has an unusual L4 vert body that has ...

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