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Inc. v. Robertson

Court of Appeals of Arkansas, Division I

January 23, 2019



          Anderson, Murphy & Hopkins, L.L.P., by: Randy P. Murphy and Brandon T. Cole, for appellant.

          Carroll Law Firm, by: Shannon Muse Carroll, for appellee.

          ROBERT J. GLADWIN, Judge

         Appellants Lowe's Home Centers, Inc. (Lowe's), and Sedgwick Claims Management appeal the March 29, 2018 opinion of the Arkansas Workers' Compensation Commission (Commission) affirming and adopting the September 8, 2017 decision of the administrative law judge (ALJ) in favor of appellee Bobby J. Robertson, specifically finding that appellee proved by a preponderance of the evidence that he is entitled to additional medical treatment recommended by Dr. Kathryn McCarthy in the form of spinal-fusion surgery and also to temporary total-disability (TTD) benefits from May 6, 2013 (with the exception of the one day that he worked), until he is declared to be at maximum medical improvement (MMI) by Dr. McCarthy following spinal-fusion surgery. Appellants argue that substantial evidence does not support the awards. We affirm.

         Appellee was employed at Lowe's as a night-shift stocker.[1] His duties included unloading trucks using a forklift to move heavy objects and pallets. Appellee used a dolly to roll the product and deliver boxes to an area of the store where he would sort, wrap, and place merchandise on a cart to be delivered to the appropriate department.

         Appellee suffered an admittedly compensable low-back injury on January 8, 2013, in the course and scope of his employment with Lowe's. He was pushing a flat cart, which was overloaded with plastic miniblinds, and he suddenly experienced an immense amount of pain in his lower back. Despite being "stuck in a hunched-over position," he managed to finish his shift that night. Appellee was unable to report his injury during that shift because the administrative personnel office was closed.

         The following day, his pain was so severe that he was unable to independently get out of bed, and his wife had to help him take a shower and dress. As a result, appellee decided that he needed to see a doctor, and he reported his injury to Ms. Debbie Coatney, head of human resources, and she sent him to the company physician, Mark Larey, D.O.

         On January 10, 2013, two days after the accident, Dr. Larey diagnosed appellee with a lumbar strain with spasm and recommended work restrictions, a medicine regimen, and ice/heat protocol. On January 17, 2013, appellee-still in pain and with restricted movement-returned to Dr. Larey, who ordered an MRI of the lumbar spine. An MRI without contrast performed on January 25, 2013, revealed an L5-S1 disk bulge with thecal sac effacement consistent with the diagnosis of low-back strain, which resulted in a recommendation to consult with a neurosurgeon for an evaluation for possible surgical correction.

         Appellee saw neurosurgeon Dr. James Mason on February 22, 2013, who recommended that he be off work for a month, wean off the steroid medication, start physical therapy, and change medication. Dr. Mason stated that if those things did not work, he recommended considering an epidural steroid injection, but he did not recommend surgery at that time. Appellee next saw Dr. Mason on March 22, 2013, at which time he reported that the physical therapy and anti-inflammatory medicine had not helped, with his symptoms worsening. Dr. Mason recommended a myelogram and post-myelogram CT scan for further review and that appellee remain off work until April 6, 2013.

         The CT scan performed on March 29, 2013, indicated very shallow disc bulges at L4-L5 and L5-S1 causing mild lateral recess narrowing without definite neural impingement and bilateral L5-S1 spondylosis without spondylolisthesis. The corresponding myelogram findings indicated that "[t]he vertebral body heights and alignment of the vertebrae are preserved. The intervertebral disc heights are preserved. There is no bone fracture or destructive bone lesion. There is no canal stenosis or nerve root cut off."

         On April 5, 2013, Dr. Mason reviewed the test reports and noted "unusual combination of pars defects at L4 and L5 with bilateral fractures through the pars. These are both stress fractures. I think that this explains well his marked low-back pain in the absence of any real findings noted on his MRI scan." He recommended that appellee wear a lumbosacral corset to stabilize his back, and he noted that it was likely that appellee would require a lumbar fusion at multiple levels to stabilize his back-L4-L5 and the sacrum-which is not a procedure that he performed. Dr. Mason referred him to Dr. McCarthy, and he told appellee to stop smoking to prepare for possible surgical intervention. He was to remain off work until his appointment with Dr. McCarthy.

         On April 18, 2013, Dr. McCarthy evaluated appellee and diagnosed him with mild disc bulge and bilateral pars defects present at L4 and L5 and spondylolisthesis at L5-S1 and prescribed physical therapy without traction, a course of Mobic, and bilateral pars injections at L4 and L5. She noted that he could return to work on May 6, 2013, after beginning physical therapy, with restrictions that included no bending, no lifting over ten pounds, no twisting, and no sitting or standing for long periods of time. Although she wanted to see him back in one month after he began another round of physical therapy and had obtained the injections, appellee did not return to Dr. McCarthy for over two years.[2]

         On December 30, 2015, appellee returned to Dr. McCarthy. She scheduled him for a spinal injection and recommended that, if it did not relieve his pain, he undergo a fusion surgery for his bilateral ...

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