BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G JAMES DOWNS, EMPLOYEE CLAIMANT TYSON SALES & DISTRIBUTION, INC.

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1 BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION CLAIM NO. G JAMES DOWNS, EMPLOYEE CLAIMANT TYSON SALES & DISTRIBUTION, INC., EMPLOYER TYNET CORPORATION, INSURANCE CARRIER RESPONDENT RESPONDENT OPINION FILED MARCH 16, 2015 Hearing before ADMINISTRATIVE LAW JUDGE AMY GRIMES, in Fort Smith, Sebastian County, Arkansas. Claimant represented by EDDIE H. WALKER, Attorney, Fort Smith, Arkansas. Respondents represented by E. DIANE GRAHAM, Attorney, Fort Smith, Arkansas. STATEMENT OF THE CASE On December 16, 2014, the above captioned claim came before the Workers Compensation Commission in Fort Smith, Arkansas, for a hearing. A pre hearing conference was conducted on March 25, 2014 and an amended pre hearing order was filed October 14, A copy of the pre hearing order has been marked as Commission s Exhibit No. 1 and with modification and no objection is made part of the record. The parties agreed to the following stipulations: 1. The Arkansas Workers' Compensation Commission has jurisdiction of this case. 2. The relationship of employee-employer-insurance carrier existed on May 20, Date of the claimant's compensable back injury is May 20, The rates of compensation are $ for temporary total disability and $ for permanent partial disability. 5. Respondents accept liability for permanent partial disability of 10 percent to the claimant's body as a whole. The issues to be litigated are limited to the following: 1. The extent of the claimant's permanent disability for wage loss. 2. The date of the end of the claimant s healing period. 3. Whether the claimant is entitled to pain management regarding the effects of his May 20, 2013 injury.

2 G JAMES DOWNS Attorney fees. The claimant contends he is no longer able to perform the employment that he has performed most of his adult life and that as a result he is entitled to permanent disability benefits in addition to his permanent impairment. The claimant contends his attorney is entitled to an appropriate attorney's fee. The claimant contends that his healing period did not end until December 16, Furthermore, the claimant contends he is entitled to pain management as recommended by Dr. Mangels. The respondents contend they accepted claimant's injury as compensable and are paying all appropriate benefits. The respondents amended their contentions by letter dated December 8, 2013, and said letter is included as part of Commission s Exhibit Number 1. The above stipulations are hereby accepted as fact. From a review of the record as a whole to include medical reports, documents, and having heard testimony and observed the demeanor of all witnesses, the following decision is rendered. FACTUAL BACKGROUND The claimant in this matter is a 62-year-old male who attended school through the ninth grade and obtained his GED in the 80's. The claimant worked for the respondent for 12 years prior to his injury, but had been a truck driver for 40 years(t. 25, 28). Prior to working for the respondent, the claimant worked for JB Hunt, also driving a truck(t. 28). The claimant suffered an admittedly compensable injury on May 20, 2013 to his low back when the steering wheel of his truck locked up and he ran off the road(commission x 1; T. 20). The claimant stated that he had immediate back pain after the accident(t. 20). An MRI dated May 21, 2013 reflects that the claimant suffered an L1 burst fracture(cx 1, p. 3, 5). The claimant worked as a product delivery driver for the respondent. He drove a tractor-trailer(t. 26). The claimant s wife was his first witness. She testified that she had been married to the claimant for 17 years. The witness added that prior to May 20, 2013 the claimant had never received any medical treatment for his back(t. 7). The witness testified that the claimant did not have to limit has activities in any way, and did not complain about back problems prior to May 20, 2013(T. 7-8). Ms. Downs also testified that the claimant had no limits on his ability to work and perform his

3 G JAMES DOWNS job duties prior to May 20, 2013(T. 8). She added that she attended the claimant s medical visits with Dr. Pulliam. She continued that after the injury and prior to surgery, the claimant s condition was getting worse and he was prescribed a back brace(t. 9-10). Ms. Downs further testified that after the surgery and before the claimant was released by Dr. Pulliam the claimant could move a bit better, but was still having a lot of pain below the break (T. 11). The witness continued that between the surgery and the first post surgery medical visit the claimant did not engage in any physically demanding activities or suffer any accidents(t. 12). Ms. Downs testified that the claimant was seen by Dr. Holder and underwent physical therapy(t. 12). She continued that the claimant was then seen by Dr. Mangels, who released him on December 16, 2013(T. 13). She further testified that she had noticed a difference in the claimant s activity since December of She stated that he was walking more. However, she added at the time of the hearing, the claimant s pain level increased and he was unable to walk as much or do the exercises that were assigned(t. 13). The claimant testified that he was not having back problems, symptoms or had a need for back treatment prior to the May 20, 2013 injury(t. 19). He added that he had no limits on his activities prior to May 20, 2013(T. 19). The claimant testified that he was seen by Dr. Pulliam who noted that he considered the claimant s compression fracture at 50 percent and did not recommend surgery(t ; Cx 1, p. 8). Dr. Pulliam noted he would monitor the progression of the fracture(cx 1, p. 9). The claimant testified that later Dr. Pulliam noted that the fracture got worse and was probably 70 percent(t. 21; Cx 1, p. 13). Both the claimant and his wife testified that they were not aware that the claimant had a prior thoracic compression fracture(t.16, 18). They both confirmed that he had no symptoms or issues that would have caused them to believe that the claimant had a prior thoracic compression fracture(t. 17, 19). The claimant testified that from the time he first saw Dr. Pulliam until he had surgery he was in solid pain, with his back pain getting worse(t. 21). The claimant continued that while a prescribed back brace limited his movement, his back pain continued to get worse(t. 21). He added that after the surgery, his low back pain got worse(t. 22). The claimant stated he was not aware that after surgery Dr. Pulliam had noted the compression fracture to be percent(t. 22). Dr.

4 G JAMES DOWNS Pulliam s notes from July 2, 2013 reflect that AP/lateral views of the lumbar spine showed the claimant with a compression of percent post surgery(cx 1, p. 20). He continued that Dr. Pulliam did not do anything else for him and released him on July 23, 2013(T. 22; Cx 1, p. 23). Dr. Pulliam noted upon his release that the claimant could not work(t. 22; Cx 1, p. 24). He also noted that the claimant was continuing to complain about low back pain, but that he could offer him no treatment for that pain and did not know when it would resolve(cx 1, p. 23). The claimant then saw Dr. Holder who recommended physical therapy. He added that the claimant could not return to work(t. 22, Rx 1, p. 5). He also sent the claimant for a Functional Capacity Evaluation on September 19, 2013(T. 23; Rx 1, p. 6-7). The Functional Capacity Evaluation report reflects that the claimant can work at a medium work level(t. 35, Rx 1, p.6 ). The Functional Capacity Evaluation reflects that the claimant s limitations include no repetitive use of the trunk, no sustained low level positions, and the need to restrict sitting and standing to sixty minutes(rx 1, p. 6). Dr. Holder reviewed the Functional Capacity Evaluation and released the claimant with a 10 percent impairment rating(t. 23; Rx 1, p. 8). Dr. Holder also placed restrictions on the claimant of sitting limited to 20 minutes per hour, standing 20 minutes per hour, and walking 20 minutes per hour during an eight-hour work period(rx 1, p. 8). The claimant testified that he then saw Dr. Mangels who performed testing(t. 23). Dr. Mangels notes reflect that he saw the claimant on November 28, He recommended that the claimant have a new MRI and CT scan. Further, Dr. Mangels noted that the claimant was limited to lifting pounds and could not drive commercially(cx 1, p. 28). Dr. Mangels added that the claimant was not at maximum medical improvement, and that his restrictions were temporary(cx 1, p. 28). The claimant had an MRI and CT scan on December 16, The MRI and CT scan reflect a fracture with 70 percent compression(cx 1, p. 32). The claimant stated that he was no better after the testing(t. 23). Dr. Mangels testified at his deposition that despite the kyphoplasty surgery, it was hard to restore the fractured height of the vertebral body. He further noted that the 70 percent compression could be a source of pain(cx 2, p. 25). Dr. Mangels also stated that he recommended pain management for the claimant( Cx 2, p. 32). Dr. Mangels report from April 28, 2014 reflects that the claimant was

5 G JAMES DOWNS in continued and increasing pain(rx 1, p. 9). Dr. Mangels report reflects that he had done all he could for the claimant and he was at maximum medical improvement as of December 16, 2013(T. 23; Cx 1, p. 30). He noted the restrictions placed on the claimant by Dr. Holder were permanent(cx 1, p. 30). The claimant testified that as of the hearing date, which was one year from the date of his release, his pain was worse(t. 24). The claimant stated that he underwent an MRI on June 17, 2013, just before Dr. Pulliam performed surgery(t. 24). That MRI reflected that the fracture was noted with at least a 70 percent compression(cx 1, p. 15). The claimant had a L1 kyphoplasty on June 19, 2013(Cx 1, p. 20). Post surgery, Dr. Pulliam s notes reflect that the claimant had some improvement but complained of lower lumbosacral pain(cx 1, p. 20). The claimant stated that he had no new injury and did not engage in demanding physical activity between June 2013 and December 2013(T. 24). He added that he had no other trauma to his back after May 20, 2013 other then the trauma associated with his June 2013 surgery(t. 25). The claimant testified that while he did not have to load or unload trucks while working for the respondent, he could not perform the truck driving job in his current condition(t. 26). He stated that he could not lift the hood on a truck, could not open the doors on the trailer, and could not crank the landing gear up on the truck to hook it up(t. 26). The claimant added that there was no way to drive a tractor trailer rig if you could not crank the landing gear (T. 27). He continued that he could not sit for long periods of time or get in and out of the trucks(t. 27). The claimant stated that after about an hour of sitting, he had to move around. He continued that he could not stop a truck every hour and make the mileage he needed to make for deliveries(t. 27). He added that if it took him too long to get from point A to point B he would be fired(t. 28). The claimant stated he could not load or unload trucks. He added that some truck driving jobs required the driver to load and unload trucks. The claimant testified that the only other work he had done was construction as a teenager(t. 28). He added that he worked general construction making foundations for structures(t. 29). The jobs required lifting, bending and carrying heavy objects(t. 29). The claimant stated that he could not perform any of the previous construction jobs(t. 29).

6 G JAMES DOWNS The claimant stated that he was making between $60-62, 000 per year working for the respondent and was paid by the mile(t. 29). He was making $12-1,400 per week(t. 30). He continued that he was not currently on any prescription medications(t. 30). The claimant testified that he was asking for pain management because his pain was getting worse(t. 30). He added that he had to lay down numerous times during the day due to pain and could do nothing around the house(t ). The claimant stated that once Dr. Mangels recommended pain management he had no way of getting prescription medication(t ). He continued that he hoped the recommended pain management would allow him to get prescription pain medication and help decrease his pain(t. 32). DISCUSSION The Commission has been asked to determine the extent of the claimant s permanent disability for wage loss. The claimant sustained an injury to a portion of his body that was not scheduled under workers compensation laws; therefore, his entitlement to permanent disability benefits is controlled by A.C.A (b)(1), which provides: In considering claims for permanent partial disability benefits in excess of the employee s percentage of permanent physical impairment, the Workers Compensation Commission may take into account, in addition to the percentage of permanent physical impairment, such factors as the employee s age, education, work experience, and other matters reasonably expected to affect his or her future earning capacity. Under this statute when a claimant has been assigned an anatomical impairment rating to the body as a whole the Commission has the authority to increase the disability rating and it can find the claimant totally and permanently disabled based on wage loss factors. Hensley v. Cooper Tire and Rubber Company, 2011 Ark. App. 593, citing, Lee v. Alcoa Extrusion, Inc., 89 Ark. App. 228, 233, 201 S.W.3d 449, 454 (2005). The wage loss factor is the extent to which a compensable injury has affected the claimant s ability to earn a livelihood. Id., See also: Grimes v. North America Foundry, 316 Ark 395, 872 S.W. 2d 59(Ark. 1994). In Logan County v. McDonald, 90 Ark. App. 409, 206 S.W. 3d 258(2005), the Arkansas Court of Appeals found that the Workers Compensation Commission had substantial evidence to justify its decision of awarding the employee a 25 percent wage loss in excess of an impairment rating under subdivision (b)(1) of In that case, claimant was 58 years old, had

7 G JAMES DOWNS a limited education, and had worked as a mechanic for many years. Here, the claimant has been assessed a 10 percent impairment rating to the body as a whole. He is 60 years old and attended school until the ninth grade and then received his GED. He testified that he had worked as a truck driver for 40 years, adding that the only other job he had was in construction as a teenager. Furthermore, the claimant here has been placed on permanent restrictions that limit his ability to sit, stand, walk, and lift. It is clear that these restrictions would limit this claimant s access to the only type of jobs for which he has any training and experience. There is no question that the claimant is unable to work the landing gear on a tractor-trailer and could not load and unload a truck if he were required to perform such duties. The claimant s pool of available jobs is obviously much smaller due to his admittedly compensable injury and its effects. After considering all of the evidence including age, education, and work experience, I find that the claimant s employment opportunities have been substantially reduced by the physical limitations caused by his compensable injury. In my opinion, this loss of wage-earning capacity would entitle the claimant to an amount of wage loss impairment in the amount of 30 percent. This amount is over and above any consideration of anatomical impairment. The next issue to be addressed is the date of the end of the claimant s healing period. The claimant contends that his healing period ended on December 16, 2013 when he was released by Dr. Mangels. The respondents contend that the claimant s healing period ended on July 23, 2013 when he was released by Dr. Pulliam. The healing period is statutorily defined as that period for healing of an injury resulting from an accident. A.C.A (13). The Arkansas Court of Appeals has interpreted the healing period as including the time until the employee is as far restored as the permanent character of the injury will permit. The Court further opined that once the underlying condition is more stable and will not improve with further treatment, the healing period is over, Roberson v. Waste Management, 58 Ark. App. 11, 944 S.W.2d 858(1997). Whether a claimant s healing period has ended is a fact question for the Commission, Id. Here, the claimant was released by Dr. Pulliam on July 23, 2013 despite the fact that he complained of continued back pain. Dr. Pulliam noted that he could offer the claimant no further

8 G JAMES DOWNS treatment of the lower lumbosacral pain for which he complained. Dr. Pulliam further noted that the claimant was having no pain in the area of his L1 compression fracture. The claimant was next seen by Dr. Holder who sent the claimant to physical therapy and for a Functional Capacity Evaluation, and assessed a 10 percent impairment rating. Dr. Holder released the claimant with sitting, lifting, and walking restrictions based on the Functional Capacity Evaluation findings. The claimant testified that he had continued and worsening pain and was seen by Dr. Mangels who noted his complaints. Dr. Mangels noted that the claimant was not at maximum medical improvement on November 28, He recommended a new MRI and CT scan. Upon review of those tests on December 16, 2013, Dr. Mangels also found the claimant to be at maximum medical improvement. He noted the compression of the fracture to be at 70 percent, the same percentage as the claimant s pre surgery MRI. Despite these findings, Dr. Mangels determined that he could do no more for the claimant. He stated the fracture was stable and surgery was not warranted. After a complete review of the evidence, it appears that there was no further treatment appropriate for the claimant in this matter. Although he continued to complain about worsening pain, all of the doctors who reviewed the claimant s condition found they could do nothing more to treat him. The claimant was as far restored as the permanent nature of his injury would permit on July 23, While the physicians that reviewed the claimant s condition differed as to the date he reached maximum medical improvement, none of them made further recommendations for treatment after July 23, The evidence supports the fact that the claimant s condition was stable on July 23, 2013 and would not improve with further treatment. Therefore, I find that the claimant s healing period ended on July 23, The Commission has also been asked to determine if the claimant is entitled to pain management treatment as recommended by Dr. Mangels. Arkansas Code Annotated (4)(F)(i) states: When an employee is determined to have a compensable injury, the employee is entitled to medical and temporary disability as provided by this chapter.

9 G JAMES DOWNS Once it is settled that the claimant has a compensable injury, the question of medical services must be determined by looking at the facts in question and determining if the medical services are reasonably necessary for the treatment of the claimant s injury. A.C.A (a) requires that: The employer shall promptly provide for an injured employee such medical, surgical, hospital, chiropractic, optometric, podiatric, and nursing services and medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus as may be reasonably necessary in connection with the injury received by the employee. What constitutes reasonable and necessary treatment under A.C.A (a) is a fact question for the Commission. Wright Contracting Co. v. Randall, 12 Ark App. 358, 676 S.W.2d 750(1984). Here, the claimant has continued to complain about worsening back pain since his surgery in June of Clearly, his medical providers think that they have done all they can do for the further treatment of his compression fracture. Dr. Mangels noted that the fracture was stable and no surgery was warranted. Dr. Mangels further noted that the claimant was at the point where he was going to have to live with his residual symptoms. These residual symptoms, including continued pain, are certainly a result of the May 20, 2012 injury. Dr. Mangels also noted that the claimant had a lot of pain that warranted the claimant seeing a pain management doctor. Clearly, Dr. Mangels thinks that there is no further surgical or other treatment that will improve the claimant s back condition. However, if the claimant is to live with his residual symptoms, then certainly Dr. Mangels recommendation for pain management is reasonable and necessary for the treatment of the claimant s admittedly compensable injury of May 20, The claimant is entitled to pain management as recommended by Dr. Mangels. FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. The claimant has proven by a preponderance of the evidence that he has suffered a loss in wage earning capacity as a result of his compensable injury occurring on May 20, The amount of wage-earning capacity loss is in an amount equal to 30 percent impairment. This amount shall be in addition to the claimant s anatomical impairment rating in the amount of 10 percent to the body as a whole. The respondent is entitled to any appropriate credits.

10 G JAMES DOWNS The claimant s healing period ended on July 23, The claimant has proven by a preponderance of the evidence that the pain management recommended by Dr. Mangels is reasonable and necessary for the treatment of the continuing pain related to the claimant s May 20, 2013 compensable injury. 4. The claimant s attorney is entitled to an attorney fee based on the above findings. ORDER The respondents shall pay to the claimant wage loss benefits based on a loss of earning capacity in the amount of 30 percent. The respondents are entitled to any appropriate credits. The claimant s healing period ended on July 23, The claimant is entitled to pain management recommended by Dr. Mangels. The claimant s attorney is entitled to an attorney fee based on the above findings and conclusions. IT IS SO ORDERED. AMY GRIMES ADMINISTRATIVE LAW JUDGE