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Ayers v. Tyson Poultry, Inc.

Court of Appeals of Arkansas, Division III

March 14, 2018

HERBERT AYERS APPELLANT
v.
TYSON POULTRY, INC., AND SECOND INJURY FUND APPELLEES

         APPE AL FR O M T HE AR KANSAS WORKERS' COMPENSATION COMMISSION [NO. F607026]

          Freeman Law Firm, PLC, by: Mark Freeman, for appellant.

          Ledbetter, Cogbill, Arnold & Harrison, LLP, by: E. Diane Graham and Joseph Karl Luebke, for appellee Tyson Poultry, Inc.

          LARRYD. VAUGHT, Judge.

         Herbert Ayers appeals the Arkansas Workers' Compensation Commission's (Commission) order reversing the Administrative Law Judge's (ALJ) decision and finding that he is not entitled to additional medical treatment for a compensable low-back injury he suffered in 2002. We affirm.

         Ayers, a sixty-seven-year-old man, began working for Tyson Poultry, Inc., as a truck driver in the late 1990s. He suffered a compensable back injury in May 2002. Ayers returned to work with permanent lifting restrictions. In May 2006, Ayers suffered another compensable low-back injury in a slip-and-fall accident. Ayers was treated after this accident by Dr. Kelly Danks. Dr. Danks specifically noted that Ayers had "chronic back pain" and had been prescribed "chronic narcotics" due to significant degenerative changes. Dr. Danks found that most of Ayers's back problems were due to a preexisting issue, and he did not expect Ayers's condition to improve significantly. The parties stipulated to Dr. Danks's conclusion that Ayers's healing period for the May 2006 injury ended on July 11, 2016.

         In August 2006, Ayers received a change of physician to Dr. Eric Spann. For several years, Dr. Spann made a variety of referrals for conservative treatment therapies and prescribed Ayers prescription narcotic medication. Since 2012, Ayers has seen Dr. Spann either quarterly or monthly to receive refills of his narcotic prescriptions and occasionally receive steroid injections.

         Ayers suffered a broken left hip on April 14, 2015, and underwent surgery to repair the fracture. After his hip surgery, Ayers saw Dr. Spann seven times between May 19, 2015, and November 16, 2015, for regular medication checks. On November 20, 2015, Dr. Spann ordered Ayers to undergo twelve weeks of physical therapy for postoperative hip pain and lumbar radiculopathy. Ayers testified at the hearing that he did not participate in physical therapy at that time. Ayers continued to see Dr. Spann monthly regarding his narcotic pain medication in 2016.

         On June 20, 2016, Dr. Spann sent Tyson a letter requesting that it cover prescribed physical therapy for Ayers designed to address his back and core muscle abdominal issues, which had been exacerbated by his hip surgery the previous year. On July 18, 2016, Dr. Spann again ordered twelve weeks of physical therapy for core strengthening and lumbar-spine issues. At an office visit on July 25, 2016, Dr. Spann's examination noted that Ayers had "full range of motion, normal gait, [and] no obvious dysfunction or atrophy." Ayers had his initial physical-therapy visit four days later at Spine and Sports Rehab in Harrison, Arkansas.

         On August 22, 2016, Dr. Spann examined Ayers and again noted that Ayers had "full range of motion, normal gait, [and] no obvious dysfunction or atrophy" and noted no abnormal findings when examining Ayers's back. Two days later on August 24, 2016, Dr. Spann sent two letters requesting that Ayers receive an additional twelve weeks of physical therapy. In one of the letters, Dr. Spann noted that Ayers had "reached a steady state with his chronic pain, " had "now stabilized at a new . . . slightly lowered baseline" after his hip fracture, and his condition was "likely to never change." Ayers finished his first twelve weeks of physical therapy on September 9, 2016.

         On September 12, 2016, Dr. John Park reviewed Ayers's medical records and evaluated Ayers's request for an additional twelve weeks of physical therapy. Dr. Park first made note of Dr. Spann's own observations in the August 24 letter regarding the stability of Ayers's condition. He further noted that Ayers's records indicated that Ayers could walk without a limp or assistive device. Dr. Park noted that post-hip-fracture physical therapy was typically done within the first two to three months after surgery to help the patient relearn how to walk without assistance and that the use of assistive devices while walking after a hip fracture could aggravate preexisting back pain. He concluded that because Ayers was already able to walk without a limp or assistance, was in a stable condition as noted by Dr. Spann, and had no trauma since the hip fracture, additional physical therapy was not medically warranted.

         Ayers was seen by Dr. Spann again four times between September 21 and November 18, 2016, and each time was noted as having "full range of motion, normal gait, [and] no obvious dysfunction or atrophy" on Dr. Spann's examination.

         Tyson denied Ayers's request for additional physical therapy. On October 26, 2016, a prehearing conference was conducted and the parties agreed to litigate Ayers's entitlement to an additional twelve weeks of physical therapy and whether continued treatment with Dr. Spann, a general-practice physician located over one hundred miles from Ayers's house, was reasonably necessary medical treatment.

         Following a hearing on December 21, 2016, the ALJ issued an opinion finding that Ayers was entitled to additional physical therapy and that treatment with Dr. Spann was reasonably necessary treatment. Tyson appealed to the Commission, which reversed the ALJ and found that Ayers was not entitled to additional medical treatment related to his ...


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