BEFORE THE ARKANSAS WORKERS COMPENSATION COMMISSION CLAIM NO. G & G JEFFERY D. HULSEY, SR., EMPLOYEE WALL FARMS, LLC, EMPLOYER

Transcription

1 BEFORE THE RKNSS WORKERS COMPENSTION COMMISSION CLIM NO. G & G JEFFERY D. HULSEY, SR., EMPLOYEE WLL FRMS, LLC, EMPLOYER CLIMNT RESPONDENT LM INSURNCE CORPORTION/ LIBERTY MUTUL GROUP, INSURNCE CRRIER/TP RESPONDENT #1 RIVERPORT INSURNCE COMPNY/ BERKLEY RISK DMINISTRTORS COMPNY, INSURNCE CRRIER/TP RESPONDENT #2 OPINION FILED MY 12, 2016 Hearing before Chief dministrative Law Judge David Greenbaum on March 25, 2016, at Jonesboro, Craighead County, rkansas. Claimant represented by Mr. Phillip J. Wells, ttorney-at-law, Jonesboro, rkansas. Respondents #1 represented by Mr. Michael E. Ryburn, ttorney-at-law, Little Rock, rkansas. Respondents #2 represented by Mr. Terry Don Lucy, ttorney-at-law, Little Rock, rkansas. STTEMENT OF THE CSE hearing was conducted on March 25, 2016, to determine whether the claimant sustained one or more compensable injuries arising out of and during the course of his employment with Wall Farm, LLC, the employer herein. prehearing conference was conducted in this claim on February 17, 2016, and a Prehearing Order was filed on said date. t the hearing, the parties stated that the stipulations, issues, together with their respective contentions were correctly set out in the Prehearing Order, subject to an additional stipulation agreed

2 2 to at the hearing. copy of the February 17, 2016,Order was introduced, without objection, as Commission s Exhibit 1. It was stipulated that the employee/employer/carrier relationship existed between the claimant/employer/carrier #1 at all relevant times prior to June 12, 2014, which included pril 24, 2014; that the employee/employer/carrier #2 relationship existed after June 12, 2014, including ugust 14, 2014; and that both respondent/carriers had controverted the claims in their entirety. t the hearing, the parties further stipulated that the claimant s average weekly wage, at all relevant times, was $538.00, entitling the claimant to compensation rates of $ per week for temporary total disability and $ per week for permanent partial disability in the event compensability was determined. By agreement of the parties, the following issues were presented for determination: 1) Whether the claimant sustained a work-related injury on pril 24, ) Whether the claimant sustained a work-related injury on ugust 14, ) In the event compensability of either claim was overcome, claimant s entitlement to associated benefits must be determined. Claimant contended, in summary, that he sustained an injury arising out of and during the course of his employment on pril 24, 2014; that he was was temporarily totally disabled for approximately ten (10) days after said injury; that he returned to work on a part-time basis and continued working until ugust 14, 2014, when he sustained a second injury arising out of and during the course of his

3 3 employment with Wall Farms; that he was temporarily totally disabled for approximately two (2) weeks, at which time he attempted to return to light-duty work; that he was allowed to receive a neurosurgical evaluation to determine his medical condition and that after he saw Dr. Campbell, a Jonesboro neurosurgeon, on October 20, 2014 [sic], he was taken off work and was entitled to temporary total disability benefits from said date and continuing until the present and until a date in the future while maintaining that his healing period had not ended; that one or both respondents should be held responsible for all outstanding medical and related treatment, together with appropriate indemnity benefits; and that a controverted attorney s fee should attach to any benefits awarded. The claimant reserved entitlement to permanent impairment and/or wage-loss disability benefits. The respondent carrier #1 contended that the claimant did not sustain a back injury on pril 24, 2014; that the claimant continued working and did not seek medical attention until ugust 14, 2014; that the claimant could not prove a work-related injury supported by objective findings to corroborate an injury on pril 24, 2014; and that the claimant s need for treatment and disability, if any, was related to a second alleged incident. Respondent carrier #2 maintained that the claimant did not sustain a compensable injury on ugust 14, 2014, and that the claimant s need for treatment and disability, if any, was the responsibility of respondent carrier #1. The claimant testified in his own behalf. dam Wall, the

4 4 employer/owner/operator, was called as a witness by respondent carrier #2. The record in this claim is composed solely of the transcript of the March 25, 2016, hearing containing a joint medical exhibit consisting of forty-two (42) pages, together with a non-medical exhibit consisting of seven (7) pages reflecting paychecks that the claimant received beginning ugust 16, 2014, through September 25, From a review of the record as a whole, to include medical reports, documents and other matters properly before the Commission, and having had an opportunity to hear the testimony of the witnesses and to observe their demeanor, the following findings of fact and conclusions of law are made in accordance with rk. Code nn : FINDINGS OF FCT ND CONCLUSIONS OF LW 1. The rkansas Workers Compensation Commission has jurisdiction over these claims. 2. The stipulations agreed to by the parties are hereby accepted as fact. 3. The claimant has proven, by a preponderance of the credible evidence, that he sustained a compensable back injury arising out of and during the course of his employment with Wall Farms as the result of a specific incident identifiable by time and place of occurrence on pril 24, 2014, which caused internal physical harm to his body, requiring medical services subsequently resulting in disability and which is confirmed by medical evidence supported by objective findings, entitling the claimant to appropriate workers compensation benefits. 4. preponderance of the credible evidence proves that respondent carrier #1 is responsible for all outstanding hospital, medical, and related treatment and respondent carrier #1 remains responsible for continued reasonably necessary medical treatment. 5. The claimant has failed to prove, by a preponderance of the evidence that

5 5 he is entitled to temporary total disability benefits prior to October 6, 2014, at which time he was taken off work by Dr. John. Campbell, a neurosurgeon in Jonesboro, rkansas. 6. The claimant is entitled to temporary total disability benefits for the period beginning October 6, 2014, and continuing through at least December 3, 2015, and until such time that the claimant s healing period can be addressed, pending further development of the medical evidence. 7. preponderance of the credible evidence reflects that the claimant s need for treatment and disability is causally related to the pril 24, 2014, incident and/or a compensable consequence thereof. Further, any subsequent work-related incidents after pril 24, 2014, including an alleged ugust 14, 2014, incident, is found to be merely a recurrence and/or a temporary aggravation of the pril 24, 2014, work incident. 8. ll additional issues, including claimant s entitlement to permanent partial disability benefits, if any, are specifically reserved. DISCUSSION This is a rather confusing and complicated claim. While I found the claimant to be a credible witness, suffice it to say that the claimant exhibited an extremely poor memory and had significant difficulty recalling various dates, as well as his course of medical treatment. In my opinion, this can be attributed, in part, to the claimant s lack of education, as well as his understanding of the process in pursuing a workers compensation claim. However, it is undisputed that the claimant sustained a significant work-related back injury as the result of a specific incident identifiable in time and place of occurrence on or about pril 24, In fact, the record reflects that the incident was promptly reported to the employer. Further, the injury was significant enough that the employer was required to send someone to the fields to pick the claimant up. However, rather than provide the claimant with

6 6 prompt medical treatment, the claimant was taken home rather than provided medical treatment. The record reflects that the employer reported the injury to his insurance agent which was in turn reported to the workers compensation carrier; however, the nature and extent of the claimant s injury was never addressed. The claimant s failure to obtain prompt, reasonably necessary medical treatment was due, in part, to the claimant s fear that he might not pass a drug test because of THC use and, in part, because the employer had no prior workers compensation claims and was unaware of his obligation to provide the claimant with prompt medical treatment. Clearly, the record reflects that the employer knew that the claimant required medical treatment based upon his observations of the claimant following the pril 24, 2014, incident and the claimant s inability to perform his normal work activities. lthough the employer continued the claimant on full salary for an extended period of time, as well as provided housing, because of the claimant s inability to perform his regular duties, the claimant was eventually reduced to being an hourly employee at reduced wages until being taken off work completely by Dr. John Campbell on October 6, I feel compelled to point out that neither respondent carrier has raised a drug defense to this claim. In fact, the record reflects that the employer was aware that the claimant occasionally smoked marijuana. The claimant, Jeff Hulsey, testified in his own behalf. The claimant worked for dam Wall Farms for more than eight (8) years. His duties consisted of taking

7 7 care of cattle, as well as maintaining the property and barns, building fences, hay bailing, and general farm labor. The claimant s work was extremely, physically demanding. The claimant s description of his injury, its prompt reporting, as well as claimant s sporadic course of medical treatment, is set out below: Let s now talk about the first injury pril the 23 rd of In your own words describe what happened. I was lifting up a spray rig, and I was standing up on it and I went to reach for the step and my foot slipped and I fell, and when I fell, I tried to catch myself, I guess, and I twisted when I landed. How far did you fall? Probably four foot. When you fell, did you experience any kind of pain or discomfort? Describe that to the Judge. I was just bad, sharp pains in my back. Couldn t hardly stand up straight, sit down or anything else. Did you continue working or did you stop working? I called him that evening and told him I was hurt, I had to go home. When you say you called him who is that? My boss, dam. Did you tell him that you hurt your back? Yes, sir. Did you tell him how you hurt your back?

8 8 Yes, sir. From the time that this incident occurred about what time of the day was that? It was afternoon, probably 4:30 or 5:00. What time do you normally get off work? Dark, sometimes later. Were you able to continue working that day before you called dam Wall? Pardon me? Did you work after the fall injury? No, no, about maybe 45 minutes or an hour. nd when you told Mr. Wall about your injury, what did he say? He sent a guy to pick me up and take me home. How did you normally get to work? I drove. So you required somebody to come pick you up? fter this injury did you come back to work the next day? No. How long did you stay off work before you came back to work? pproximately 10 days. During that period of time, describe how your back was doing? Oh, it was hurting. I just laid in bed, couldn t hardly get up. It was real, real

9 9 sore. Was it getting better, staying the same or getting worse? Probably staying the same, say maybe a little worse. Who was the first medical care provider you saw to try to get treatment for your back injury? Cecil Massey. nd Cecil Massey, is he your family doctor? Now, it s my understanding from the medical records and let s back up. Did you have occasion to see a chiropractor? Okay, and who was that? Dr. Curtis. nd why did you see Dr. Curtis? Just to get x-rays and see how bad it was. Had you used Dr. Curtis before? No, sir. nd the medical records indicated that the first time you saw him was on May the 19 th of Does that sound about right? nd during this period of time, were you aware of whether Mr. Wall had workers comp insurance for work injuries? No, sir.

10 10 Were you I mean, did you know that he did or did not have insurance? I didn t know. s far as Dr. Curtis s treatment, who paid for that? It was a free thing I got in the mail just for x-ray and a treatment. Okay. nd did his treatment provide any benefit to you? No. Now, you indicated the next I believe the next person you saw was a Dr. Massey, is that right? nd is he your family doctor? Yes, sir. nd what did he do for you? He sent me for an MRI and then recommended that I see Dr. Campbell, a neurosurgeon. So when Dr. Massey sent you to have an MRI, he was treating your lower back? Yes, sir. nd after his review of the lower back MRI, he decided to send you to a neurosurgeon? nd that was Dr. John Campbell? Yes, sir. So that was a referral by Dr. Massey, is that correct?

11 11 Right. Now, did you attempt to get Dr. Massey s bill paid by the workers comp or how did you arrange to pay for his treatment? My insurance. nd which insurance is that? It s I can t remember. Is it health insurance? Now, the records show that you saw Dr. Campbell on October the 6 th of 2014, is that correct? Yes, sir. Okay. nd you saw him how many times? Once. nd he evaluated your case, is that correct? Yes, uh-huh. nd did he take you off work? (Tr.9-13) The claimant testified that following the pril, 2014, injury, he returned to his regular duties after being off work approximately ten (10) days. However, the claimant stated that he was unable to work full-time after the pril, 2014, incident and was required to take off work frequently because of difficulty getting around while taking over-the-counter medications. It is unclear how much work the claimant

12 12 missed between pril and ugust, 2014; however, the record reflects that the employer continued to pay the claimant full salary plus provided housing through on or about the middle of ugust, 2014, at which time the claimant was reduced to being paid as an hourly employee. The claimant maintained that he was involved in a second work-related incident on or about ugust 14, 2014, at which time while he was bush-hogging, he ran into a large hole in the grass which jerked him around and caused an increase in his back pain. The claimant stated that he did not recall notifying his employer about the second incident until after seeking medical treatment as will be set out further below. The claimant stated that after seeking medical treatment, his primary care physician sent him for a MRI at which time he was sent to a neurosurgeon. pparently, it was only after the claimant was seen by the neurosurgeon, that the claimant alleged he first learned that the employer had workers compensation insurance which appears to be disingenuous. The claimant s primary treatment physician, Dr. Massey, subsequently referred the claimant to a number of other physicians; however, none of the claimant s medical treatment was paid under workers compensation. gain, the claimant has not required to galnful employment since being taken off by Dr. Campbell on October 6, (Tr.15-19) On cross-examination by respondent #1, the claimant testified that his symptoms became more severe following the second alleged incident. However, as will be reflected in the medical set out further below, all of the medical histories

13 13 attribute the claimant s symptoms to the undisputed pril, 2014, incident. In fact, on cross-examination by respondent #1, it is clear that when the claimant first sought medical treatment from Dr. Chris Curtis, D.C., his physical problems were attributed to the pril 24, 2014, fall. The patient history was further confused by the initial office visit to his primary care physician, Dr. Cecil Massey on ugust 14, 2014, contemporaneous with the second alleged incident; however, again, the history contained in both doctors reports appear to be related to the undisputed slip and fall rather than a subsequent incident as reflected in cross-examination by respondent #1 below: You do indicate on one of the blanks that, re there any injuries or surgeries that you ve had? You did say, Falls. You fell at work two weeks ago under Falls. The chiropractor then goes on in his own words, when he describes what you were there for today, and say, Low back pain, worse past two weeks with no cause. Patient states has had back problems in the past. Can you explain that? Right. I told him what had happened, and that I was hurting, and I d like to get the free x-ray to see what was going on, see what I had to do. Okay. You also indicated that you were taking Flexeril at this time? Well, I wasn t prescribed. I took a few. Okay. nd that s just a muscle relaxer. When did you take Flexeril? It was within the two weeks after I got hurt. Okay. fter the accident To rest, yeah. you took Flexeril? I also have another doctor s visit after you visited Cecil Massey for the first time. Underneath his Patient History, he said, Patient slipped and fell two months ago. Now this report is in ugust. Two months ago would

14 14 have been June and your first injury appears tohave occurred in pril. Right. Can you explain that? No. Did you have another accident in between? No. Did you slip and fall at home? No. (Tr.26-27) Cross-examination by the attorney for carrier #2 reflects that the claimant was not completely truthful when he stated that he was unaware that the employer had workers compensation insurance. The cross-examination further conforms to the overwhelming weight of medical history which attributed the claimant s need for treatment to the pril 23, 2014, incident rather than a second alleged injury. More specifically, the claimant testified that he reported the injury to his employer, dam Wall, immediately after he fell off the water-wagon in pril, The injury was significant enough that the claimant was unable to return to work for approximately ten (10) days. lthough on direct examination, the claimant stated that he did not know the employer had workers compensation insurance, and further stated in his discovery deposition that he was unaware that a workers compensation claim had ever been filed, on cross-examination, the claimant acknowledged that he received a call from one Diane Day, an adjustor for respondent carrier #1, inquiring about the

15 15 pril, 2014, accident and whether the claimant had gone to a doctor. The claimant asserted that he told the adjustor that he had not been to the doctor and that he did not specifically request medical treatment. Unfortunately, the adjustor was not called as a witness in this claim and no copy of the conversation between the claimant and the insurance adjustor was proffered. However, the employer was aware that the injury was significant as reflected by the claimant s subsequent course of conduct and work history, yet the claimant was never provided medical treatment. Further, all of the medical histories relate to the first and only injury reported to the employer. The claimant was first examined and treated by Dr. Chris Curtis, a chiropractor. The claimant was evaluated on May 19, lthough the accident information is confusing, the claimant did report a fall at work two (2) weeks earlier. Dr. Curtis noted that the claimant was taking Flexeril, 10 mg, and Ibuprofen. He further noted low back pain, worse over the past two (2) weeks with no cause, together with sharp pain with a severity up to 9 at worse and some right leg numbness. physical examination was positive for intervetebral disc rupture and muscle/disc/nerve irritation. n x-ray taken by Dr. Curtis revealed Hypo Lordesis. (Jt. Ex., pp.1-6) The claimant was next seen by Cecil Massey,.P.R.N. in Paragould, rkansas, with a history of back problems for several months duration which began after the claimant fell off a water-wagon. The claimant further stated that symptoms

16 16 had progressed and the claimant was experiencing left leg and arm numbness. Provider Massey ordered a lumbar spine MRI which revealed a broad based disc bulge at L4-L5, as well as a paracentral disc bulge and focal herniation at L5-S1..P.R.N. Massey refilled the medication, Flexeril, 10 mg, and referred the claimant to Dr. John. Campbell, a neurosurgeon in Jonesboro, rkansas. The claimant apparently saw Dr. Campbell one-time only on October 6, gain, by history, Dr. Campbell noted a work-related injury in the late Spring. In a more detailed report dated October 6, 2014, Dr. Campbell stated that the claimant was actually hurt on the job earlier in the year when he slipped coming off a piece of equipment. Dr. Campbell also noted that the claimant injured himself again a few weeks ago when he was bush-hogging and apparently hit a rut or hole in the around which jerked him severely. Dr. Campbell s final diagnosis and recommendation is set out below: SSESSMENT/PLN: Patient with a left L3 radiculopathy. He does have a left L3-4 foraminal disk protrusion. This is fairly prominent and it might be causing some slight impingement of the L3 root. He could consider surgical intervention, but for now wishes to proceed with physical therapy and I think that is just fine. I will set up physical therapy for the patient and I will be glad to see him back if symptoms are not improving. (Jt. Ex., p.14) The claimant has not returned to gainful employment since October 6, The claimant returned to Paragould Doctors Clinic on October 31, 2014, at which time.p.r.n. Massey noted that the physical therapy recommended by Dr. Campbell did not help. The claimant requested another opinion. The claimant was

17 17 seen for several follow-ups with Paragould Doctors Clinic and eventually referred to rkansas Specialty Orthopaedics in Little Rock, rkansas, where he was initially evaluated on June 15, 2015, by Dr. Jarred Seale. It must be noted that Dr. Seale s interpretation of the various diagnostic studies differs from the diagnosis made by Dr. Campbell. Dr. Seale recommended steroid injections at L5-S1. Dr. Seale further indicated that if relief was not obtained, he would probably consider minimally evasive left L4-5 and L5-S1 decompression. Dr. Seale further recommended a repeat MRI of the lumbar spine. Finally, Dr. Seale opined with a degree of medical certainty that at least fifty-one percent (51%) of the claimant s symptoms were directly related to his work injury and that treatment should be supported by workers compensation and not private insurance. (Jt. Ex., pp.26-28) gain, Dr. Seale s interpretation was based upon a prior lumbar spine MRI performed on ugust 18, The claimant received follow-up treatment at the Paragould Doctors Clinic where he was seen by both Mr. Massey, and Dr. Lance Monroe. Dr. Monroe s notes from September 28, 2015, reflect that the claimant did not wish to undergo the injections but was willing to go to a different pain clinic while requesting medications. The claimant followed up at Paragould Doctors Clinic and was subsequently referred to Comprehensive Pain Specialists (CPS) in Paragould, rkansas. The evaluation at CPS was on December 3, It appears that said clinic recommended the epidural steroid injections previously recommended by Dr.

18 18 Seale and initially declined. This time the claimant indicated he would like to proceed with the lumbar steroid injections a.s.a.p. The claimant was also prescribed Tramadol for pain and given samples of other medications. The initial evaluation with CPS is the last medical of record. (Jt. Ex., pp.38-42) dam Wall was called as a witness by respondent #2. Mr. Wall is the owner/operator of Wall Farms. Mr. Wall stated that as soon as the claimant reported his work-related injury, he turned the claim into Liberty Mutual Insurance through his personal insurance agent. He stated that he was aware that Liberty received the claim because he received a call from one Diane Day, a claims consultant with Liberty Mutual Insurance. Mr. Wall stated that after he gave Ms. Day a history of the injury, she indicated she would call the claimant and set up his medical treatment. The employer asserted that he was unaware of any alleged second injury until on or about pril or May of portion of Mr. Wall s testimony which I found illuminating follows: ll right. Did you and Jeff ever talk about the phone call with Ms. Day, his phone call with Ms. Day? Okay. nd what did Jeff tell you about going to see a doctor in relation to this back injury? Well, he said he didn t need to go to the doctor, he didn t have insurance. But by this time a workers comp claim had been filed?

19 19 nd you ve had two phone conversations with Ms. Day? Uh-huh, yes. nd Ms. Day in the second phone conversation told you that she had talked to Jeff? Did Jeff ever talk to you about his conversation with Ms. Day? Okay. nd what did he tell you about that conversation? He said she had called him and that he couldn t take coverage because he couldn t pass a drug test. Did you encourage Jeff that he needed to get medical care? Now during this time did Jeff at some point begin to work less hours because of his feeling bad with his back? Did you drop his hourly pay immediately or did you continue to pay him his $400 a week? No, I paid him $400 a week for a while. For a while. You also let him continue staying in that house on your property? You ve looked at what I call Respondent #2's non-medical exhibit, I think we called it Exhibit today, these checks that were written beginning in ugust of You ve had a chance to look over those?

20 20 Okay. Is it fair to assume that it was sometime in ugust or September maybe when you put Jeff back on an hourly pay rather than a salary? Had his hours dropped off any further by that time? No. But ever since the event in pril had he been working less hours? Okay. t any point, Mr. Wall, did Jeff come to you and say, I have hurt my back on the bush hog? No. When is the first time you learned about this bush hog episode? Whenever the representative for Berkley called me. Tell me about Berkley. By this time you ve still got workers comp coverage, by ugust of 2014, right? Is it still with Liberty? I believe it s with Berkley then. Berkley, okay. Which is the administrator for Riverport? Okay. nd so someone from Berkley called you? Uh-huh, yes. Okay. nd thinking in terms of this second event allegedly happening on

21 21 ugust the 14 th of 2014, can you give me any kind of reasonable guess as to how long after that point in time it was that you heard from who was it? Liberty. Berkley? Berkley. Okay. What was the lady s name? Melanie White. Melanie White. How long was it you think from ugust the 14 th of 2014 until you heard from Melanie White? It would have been the next year. Wow, in 2015? I believe it was pril or May. Okay. During this whole time are you aware that Jeff still had some problems with his back? Yeah, Jeff had a problem with his back the whole time. But let s be clear. You didn t learn independently about this second alleged injury until you heard about it in pril or May of 2015? nd you learned about that through a Berkley representative named Melanie White? Okay. Would you have filed a second claim if you knew about a second specific injury? Yes, I filed a claim. s soon as Melanie White called me, I filed a claim that day.

22 22 Okay. So you eventually, when you fould out about it, you did file the claim? I filed a claim that day. Okay. On behalf of Jeff. Go through your agent again? Okay. dam, all through this time I understand Mr. Hulsey worked for you until October of Were there other occasions that you encouraged him to go see a doctor? Well, I knew he needed to but I knew he didn t have insurance. nd he had already told you he didn t want to go through the work comp system? He said he didn t want to initially. nd why was that again? Because he couldn t pass the drug test at that date when he got hurt. He said that s why he was nervous to take disability because he wasn t for sure if that would deny his coverage or not. Okay. re you talking about the first incident? (Tr.55-59) On cross-examination, Mr. Wall acknowledged that prior to pril, 2014, the claimant had no physical limitations. On further cross-examination, the employer further acknowledged that Liberty Mutual Insurance advised that it would set up

23 23 medical treatment for the claimant s reported injury which, again, is undisputed. The employer was unaware of any drug defense which potentially could have been asserted. However, again, no drug defense has been raised and the record further reflects that the employer was aware of the claimant s recreational use of marijuana. (Tr.60-61, 68) DJUDICTION The claimant contended, in summary, that he sustained back injuries arising out of and during the course of his employment with Wall Farms as the result of two (2) specific incidents identifiable in time and place of occurrence. In order for the claimant to establish a compensable injury as the result of a specific incident, the following requirements of rk. Code nn (4)()(i) must be established: 1. Proof, by a preponderance of the evidence, of an injury arising out of and in the course of employment; 2. proof, by a preponderance of the evidence, that the injury caused internal or external physical harm to the body which required medical services or resulted in disability or death; 3. medical evidence supported by objective medical findings, as defined in rk. Code nn (16), establishing the injury; and, 4. proof, by a preponderance of the evidence, that the injury was caused by a specific incident and is identifiable by time and place of occurrence. If the claimant fails to establish by a preponderance of the evidence any of the requirements for establishing the compensability of the injury alleged, he fails to establish the compensability of the claim, and compensation must be denied. Mikel v. Engineered Specialty Plastics, 56 rk. pp. 126, 938 S.W.2d 876 (1997).

24 24 In my opinion, the claimant has satisfied each and every requirement necessary to prove that he sustained a compensable injury to his low back on pril 24, s previously noted, the accident and injury is undisputed by the employer. The injury manifested itself immediately. lthough the employer exercised good faith in meeting its obligations under our workers compensation laws by continuing the claimant on full salary despite the fact that the claimant was only able to work part-time after pril 24, 2014, the employer was eventually required to reduce the claimant to being paid as an hourly employee beginning in ugust, In fact, the claimant s credible testimony that he was physically unable to perform his regular job duties on a full-time basis is corroborated by the employer. The employer candidly acknowledged that the claimant was, at all times, physically limited after the initial event on pril 24, Unfortunately, despite the fact that the employer knew that the claimant s physical problems and need for treatment were directly related to the undisputed incident, the claimant refused to seek timely medical treatment and the employer failed to provide the treatment necessary to address the claimant s apparent physical problems. While I recognize that the claimant s reluctance to aggressively seek medical treatment was based upon his fear that he might not pass a drug test, this is not a valid defense to the within claim for reasons set out above. Further, the claims adjustor for respondent carrier #1 was verbally provided with the information concerning the claimant s pril 24, 2014, injury, yet failed to file appropriate forms with the rkansas Workers

25 25 Compensation Commission, and failed to provide the claimant with prompt, reasonably necessary medical treatment. gain, the injury is undisputed. The claims adjustor advised the employer that she would provide medical treatment which was not provided. Based upon the employer s report of injury, an examination and diagnostic studies were warranted. Further, the claimant offered sufficient proof of medical evidence supported by objective findings to establish the back injury as reflected by the initial report of Dr. Curtis, as well as the subsequent MRI directed by medical provider Massey. While I recognize that respondents #1 have asserted that the claimant s need for treatment and disability is the result of a subsequent, intervening accident, the record as a whole does not support this contention. ll of the initial medical histories attribute the claimant s injury to the pril 24, 2014, incident. Further, the contention of carrier #1 that the claimant did not seek medical attention until ugust 14, 2014, is clearly incorrect. The initial medical was by Dr. Curtis in May, gain, the claimant, by history, attributed his physical problems to the undisputed accident. The only reference to a second incident is contained in the October 6, 2014, report from Dr. John Campbell. However, the claimant s injury pre-existed this incident. In my opinion, if a second incident occurred, it was merely a temporary aggravation or recurrence of the primary injury which is undisputed. When the primary injury is shown to have arisen out of and in the course of the employment, the employer is responsible for any natural consequence that flows

26 26 from that injury. If, after the period of initial disability has subsided, the injury flares up without an intervening cause and creates a second disability, it is a mere recurrence, and the employer remains liable. recurrence is not a new injury but simply another period of incapacitation resulting from a previous injury. tkins Nursing Home v. Gray, 54 rk. pp. 125, 923 S.W.2d 897 (1996). n aggravation, however, is a new injury resulting from an independent incident, Farmland Ins. Co. v. Dubois, 54 rk. pp. 141, 923 S.W.2d 883 (1996) (citing Pinkston v. General Tire & Rubber Co., 30 rk. pp. 46, 782 S.W.2d 375 (1990)). The test is whether there is a causal connection between the two (2) episodes. The determination of whether the causal connection exists is a question of fact for the Commission to determine. Jeter v. B.R. McGinty Mechanical, 62 rk. pp. 53, 968 S.W.2d 695 (1998). n aggravation is a new injury resulting from an independent accident. Farmland Insurance Company v. Dubois, 54 rk. pp. 141, 923 S.W.2d 893 (1996). n aggravation, being a new injury with an independent cause, must meet the statutory requirements for a compensable injury. Ford v. Chemipulp Process, Inc., 63 rk. pp. 260, 977 S.W.2d 5 (1998). recurrence is not a new injury but merely another period of incapacitation resulting from a previous injury. tkins Nursing Home v. Gray, 54 rk. pp. 125, 923 S.W.2d 897 (1996). recurrence exists when the second complication is a natural and probable consequence of a prior injury. Weldon v. Pierce Brothers Construction, 54 rk. pp. 344, 925 S.W.2d 179 (1996).

27 27 gain, in my opinion, the primary injury sustained by the claimant occurred on pril 24, 2014, and respondents #1 are responsible for the natural consequences of that injury. In the event that it is determined that the second event was an aggravation rather than a recurrence, which is not conceded herein, then, nevertheless, respondents #1 would remain responsible under the doctrine of apportionment. See, ETN Insurance Co. v. Dunlap, 16 rk. pp. 51, 696 S.W.2d 771 (1985). Compensability having been determined, the only remaining issue concerns claimant s entitlement to temporary total disability. First, although the claimant maintained that he missed work following the pril 24, 2014, injury, the credible evidence of record reflects that the employer continued the claimant on full salary and provided the claimant with housing through on or about ugust, 2014, at which time the claimant became an hourly employee. ccordingly, the claimant is not entitled to temporary total disability benefits prior to October 6, 2014, when the MRI studies revealed the extent of claimant s injury and the claimant was taken off work by Dr. John Campbell. The claimant has not returned to gainful employment since October 6, Temporary total disability is that period within the healing period in which an employee suffers a total incapacity to earn wages. K II Construction Company v. Crabtree, 78 rk. pp. 222, 79 S.W.3d 414 (2002). When an injured employee is totally incapacitated from earning wages and remains in his healing period, he is

28 28 entitled to temporary total disability. Id. The healing period is statutorily defined as that period for healing of an injury resulting from an accident. Dallas County Hospital v. Daniels, 74 rk. pp. 177, 47 S.W.3d 283 (2001). The healing period ends when the employee is as far restored as the permanent nature of his injury will permit, and if the underlying condition causing the disability has become stable, and if nothing in the way of treatment will improve that condition, the healing period has ended. Crabtree, supra. The question of when the healing period has ended is a factual determination for the Commission. The healing period is defined as that period for healing of the injury that continues until the employee is as far restored as the permanent character of the injury will permit. rkansas Highway & Transportation Department v. McWilliams, 41 rk. pp. 1, 846 S.W.2d 670 (1993). If the underlying condition causing the disability has become more stable and if nothing further in the way of treatment will improve that condition, the healing period has ended. The persistence of pain may not in and of itself prevent a finding that the healing period is over, provided that the underlying condition has stabilized. Id.; Mad Butcher, Inc. v. Parker, 4 rk. pp. 124, 628 S.W.2d 582 (1982). Conversely, the healing period has not ended so long as treatment is administered for the healing and alleviation of the condition. McWilliams, supra; J.. Riggs Tractor v. Etzkorn, 30 rk. pp. 200, 785 S.W.2d 51 (1990). The determination of when the healing period ends is a factual determination to be made by the Commission. McWilliams; Parker; supra. In

29 29 Pallazollo v. Nelms Chevrolet, 46 rk. pp. 130, 877 S.W.2d 938 (1994), the Court of ppeals stated that in order to be entitled to temporary total disability compensation for an unscheduled injury, a claimant must prove that he remained within his healing period and that he suffered a total incapacity to earn wages. rkansas State Highway & Transportation Department v. Breshears, 272 rk. 244, 613 S.W.2d 392 (1981). In view of the foregoing, I hereby make the following: WRD Respondent, Liberty Mutual Insurance Corporation, is hereby directed and ordered to pay, to the claimant, temporary total disability benefits at the rate of $ per week beginning October 6, 2014, and continuing through at least December 3, 2015, pending further development of the medical evidence. ll accrued benefits shall be paid in lump sum and without discount. Respondents #1 are further directed and ordered to pay all outstanding medical and related expenses, and, respondents #1 remain responsible for continued reasonably necessary medical treatment. ll additional issues are specifically reserved. This ward shall bear interest at the legal rate until paid. IT IS SO ORDERED. DVID GREENBUM Chief dministrative Law Judge