Amaya v. Newberry's 3N Mill

282 S.W.3d 269, 102 Ark. App. 119, 2008 Ark. App. LEXIS 287
CourtCourt of Appeals of Arkansas
DecidedApril 9, 2008
DocketCA 07-939
StatusPublished
Cited by10 cases

This text of 282 S.W.3d 269 (Amaya v. Newberry's 3N Mill) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Amaya v. Newberry's 3N Mill, 282 S.W.3d 269, 102 Ark. App. 119, 2008 Ark. App. LEXIS 287 (Ark. Ct. App. 2008).

Opinions

Larry D. Vaught, Judge.

Appellant Marcos Amaya sustained a compensable injury to his back on June 2, 2004, when he stepped into a hole while attempting to carry a part of a heavy tree during the course of his employment with appellee Newberry’s 3N Mill. On appeal, he argues that the Workers’ Compensation Commission erred in its decision that he was not entitled to additional temporary partial disability benefits and that he was not entitled to additional medical treatment (back surgery). We affirm in part and reverse in part.

Following his undisputed compensable injury, Amaya was treated by Dr. Shannon Card, who ultimately referred him to Dr. Kelly Danks, a neurosurgeon. Dr. Danks recommended that Amaya undergo epidural steroid injections for his back injury after the physical therapy did not resolve all of his symptoms. In a report dated March 14, 2006, Dr. Danks noted:

Marcos returns. He had epidural steroid injection by Dr. Cannon. This only afforded him temporary relief of no more than two weeks. At this time, I have discussed his options with him, which include surgical treatment. He would most probably need a posterior lumbar interbody fusion at L4-5 and L4-S1. I do not believe surgery is going to return him to the status of being able to go back to roofing. At this time, he does not feel like he would like to proceed with surgical treatment. I have given him some Arthrotec to take. I have ordered a functional capacity to be performed on him. I will see him back after this is done.

Amaya underwent an independent medical evaluation by Dr. Steven Cathey on December 8, 2005. Dr. Cathey stated in his evaluation:

IMPRESSION: Chronic low back pain most likely secondary to degenerative lumbar disc disease. Although Mr. Amaya most likely did suffer some type of musculoskelatal injury a year and a half ago, I believe his continued symptoms are more likely related to the degenerative changes documented on the MRI scan than to the occupational injury itself.
RECOMMENDATIONS:
1. Although I would like to have an opportunity to review the MRI scan firsthand, I do not believe Mr. Amaya is a candidate for lumbar disc surgery, spinal fusion, or other neurosurgical intervention. Based on my review of Dr. Danks’ clinic notes, I do not believe he was particularly enthusiastic about the prospects of surgery helping in this case either.
2. I believe epidural steroid injections are a reasonable treatment option at this point. I believe this should also be covered under his workers [sic] compensation carrier. I base this on the fact that he was never offered epidural steroid injections during the initial phase of his injury and might have actually responded favorably had this been carried out.
3. Since the patient’s lower back pain has been refractory to trials of physical therapy, medication, etc[. . .], I really do not see much point in continuing these options any further.
4. As far as his job is concerned, I believe Mr. Amaya will either need to return to work at a regular duty or find something else to do where he can handle himself. Again, he does seem motivated to go back to work, and I believe he should be encouraged to along these lines. Perhaps a functional capacity evaluation is in order to help return him to the workforce. He certainly does not seem to be making any progress just sitting around the house every day.
5. I believe he has essentially reached maximal [sic] medical improvement with regard to his occupational injury. Since the degenerative changes noted on the MRI scan are almost certainly preexisting, I do not believe he has sustained any long-term impairment referable to the June 2, 2004, occupational injury.
6. I have encouraged the patient to follow up with Dr. Danks to discuss these issues with him if he remains symptomatic following the epidural steroid injection later this month. As always, I stand ready to reevaluate the patient should new problems arise.

On December 20, 2005, Dr. Cathey noted that he had reviewed Amaya’s MRI scan that he did not have available at the time of the IME. According to Dr. Cathey’s observation:

The study shows congenital spinal stenosis. There is a right para-central disc protrusion at L4-L5 an [sic] a smaller left paracentral disc herniation at L5-S1. I was not, however, impressed with any resulting nerve root compression or spinal stenosis at either L4-L5 or L5-S1.
ASSESSMENT/PLAN: Based on my review of Mr. Maaya’s [sic] MRI scan of his lumbar spine, I do not see an indication for lumbar disc surgery or other neurosurgical intervention. None of the other opinions rendered following his independent medical evaluation have been affected by my review of the MRI scan.

On March 21, 2006, Amaya underwent a functional capacity evaluation. The evaluation report noted that he gave an unreliable effort during the evaluation. Specifically, the report stated:

RELIABILITY AND CONSISTENCY OF EFFORT
The results of this evaluation suggest that Mr. Amaya gave an unreliable effort, with 40 of 55 consistency measures within expected limits. Mr. Amaya demonstrated higher than expected coefficient of variations with repetitive trial isometric strength testing, which is an indication of inconsistent effort between repeated trials. Mr. Amaya also had inappropriate results with horizontal strength change testing, which is also an indication of inconsistent effort with isometric strength testing. Mr. Amaya also demonstrated significandy higher force with both the right and left handed rapid grip exchange, which is an indication of sub-maximal effort with the hand grip testing. Mr. Amaya’s AROM with lumbar flexion was significantly limited during formal evaluation but with functional aspects of the testing, Mr. Amaya was noted to have minimal deficits with lumbar flexion. Mr. Amaya demonstrates normal movement patterns throughout testing yet demonstrated moaning with slow movement patterns with formal measurement. Mr. Amaya’s pain reports did not correlate with his movement patterns and overall abilities. He moved freely throughout testing and without significant body mechanic changes that indicated pain. He demonstrates no outward expression of pain and no facial expressions indicating pain as well. These do not correlate with his subjective complaints of pain at a level 7. His movement patterns did not change when his pain was between a 4 and 7. It is further noted that Mr. Amaya was positive on Waddell’s signs for non-organic back pain including passive hip rotation, overreaction to light touch, regional pain over a broad area and axial loading of the spine. These are inappropriate illness responses.
FUNCTIONAL ABILITIES
Mr. Amaya demonstrated inconsistent effort but did demonstrate the ability to perform material handling activities at the Medium level with an occasional lift/carry of 50 lbs. Mr. Amaya is able to perform the following activities on a Constant basis: Push Cart-40Lb, Pull Cart-40 Lb, Reach with 5 lb. Weight, Fingering (L), Fingering (R), Sitting and Standing, Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kymira Gant v. First Step, Inc., and Risk Management Resources
2023 Ark. App. 393 (Court of Appeals of Arkansas, 2023)
Serena Dodson v. Valley Behavioral Health Systems
2022 Ark. App. 128 (Court of Appeals of Arkansas, 2022)
Fuller v. Pope Cnty. Judge
538 S.W.3d 851 (Court of Appeals of Arkansas, 2018)
Delaplaine Farm Center v. Crafton
382 S.W.3d 689 (Court of Appeals of Arkansas, 2011)
Bryant School District v. Aylor
2011 Ark. App. 173 (Court of Appeals of Arkansas, 2011)
Hernandez v. Wal-Mart Associates, Inc.
337 S.W.3d 531 (Court of Appeals of Arkansas, 2009)
Burkett v. Exxon Tiger Mart, Inc.
304 S.W.3d 2 (Court of Appeals of Arkansas, 2009)
Luten v. Xpress Boats & Backtrack Trailers
285 S.W.3d 710 (Court of Appeals of Arkansas, 2008)
Amaya v. Newberry's 3N Mill
282 S.W.3d 269 (Court of Appeals of Arkansas, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
282 S.W.3d 269, 102 Ark. App. 119, 2008 Ark. App. LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/amaya-v-newberrys-3n-mill-arkctapp-2008.