LOWE'S HOME CENTERS, INC., AND SEDGWICK CLAIMS MANAGEMENT APPELLANTS
BOBBY J. ROBERTSON APPELLEE
FROM THE ARKANSAS WORKERS' COMPENSATION COMMISSION [NO.
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.
J. GLADWIN, Judge
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
was employed at Lowe's as a night-shift
stocker. 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.
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.
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.
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
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
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."
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.
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
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 ...