Cite as 2025 Ark. App. 358 ARKANSAS COURT OF APPEALS DIVISION I No. CV-24-567
ROGER GRUBBS Opinion Delivered June 4, 2025 APPELLANT APPEAL FROM THE ARKANSAS WORKERS’ COMPENSATION V. COMMISSION [NO. G506221] SOUTHERN PERSONNEL MANAGEMENT, INC., D/B/A CABINET SHOP, INC.; AND AMTRUST NORTH AMERICA, TPA CARRIER APPELLEES AFFIRMED
BART F. VIRDEN, Judge
Appellant Roger Grubbs appeals from the Arkansas Workers’ Compensation
Commission’s decision that he did not prove entitlement to surgery recommended by his
treating physician and an award of temporary total-disability (TTD) benefits. With respect to
medical treatment, Grubbs argues on appeal that a reasonable person could not reach the
same conclusion as the Commission and that the Commission misinterpreted medical
evidence and gave undue weight to its previous decision. Grubbs also contends that he is
entitled to TTD benefits because he is still within his healing period given his treating
physician’s opinion that he is disabled and cannot work until he receives the recommended
treatment. We affirm the Commission’s decision. I. Background
Grubbs began performing cabinetry work for appellee employer Southern Personnel
Management, Inc., d/b/a Cabinet Shop, Inc., in 1975. Grubbs sustained a compensable
injury to his cervical and thoracic spine in March 2013 when he was involved in a motor
vehicle accident (MVA). He received conservative treatment and returned to restricted-duty
work. In June 2015, Grubbs reached maximum medical improvement (MMI) “from a
neurosurgical standpoint.”1
On August 7, 2015, Grubbs was involved in another MVA. The employer initially
accepted the injury as compensable and paid some TTD benefits. Dr. Gregory Loyd assessed
“acute exacerbation of degenerative arthritis of the cervical, thoracic and lumbar spines
related to recent MVA.” Dr. Steven Cathey wrote on August 31, 2015, that Grubbs’s
diagnosis was degenerative disc disease affecting the cervical, thoracic, and lumbar spine. He
wrote, “[Grubbs] probably did suffer a thoracic strain superimposed on these pre-existing
conditions. Unfortunately, he is not a candidate for spinal surgery or other neurosurgical
intervention.” Dr. Cathey also opined that Grubbs had reached MMI. Grubbs was told that
he could return to regular-duty work.
In November 2016, Grubbs began seeing Dr. James B. Blankenship, his treating
physician for lower back pain. Dr. Blankenship noted the two prior MVAs and that Grubbs
1 In an opinion filed February 13, 2019, an administrative law judge (ALJ) determined that Grubbs had sustained wage loss in an amount equal to a 15% impairment and in addition to the 5% assigned for the anatomical impairment rating to the body as a whole.
2 had been previously treated with injections and physical therapy. Dr. Blankenship’s
impression was low back pain; fibromyalgia; pain in the thoracic spine; and cervicalgia. In
February 2017, Grubbs followed up with Dr. Blankenship, and new diagnostic testing
showed abnormalities of the lumbosacral spine. Dr. Blankenship recommended that Grubbs
see Dr. David Cannon for evaluation and a steroid injection. He also recommended an
aggressive, active physical-therapy course.
When Grubbs sought TTD benefits from February 9, 2017, to a date yet to be
determined and additional medical treatment by or at the direction of Dr. Blankenship to
include, but not limited to, physical therapy and pain management, his employer
controverted the claim. An ALJ determined that Grubbs had proved that he sustained a
compensable injury on August 7, 2015, and was entitled to additional medical treatment as
recommended by Dr. Blankenship and that he was entitled to TTD benefits. Both parties
appealed.
In an opinion dated October 1, 2018, the Commission found that Grubbs proved a
compensable injury to his neck and back on August 7, 2015, and that Dr. Blankenship’s
current treatment recommendations were reasonably necessary in connection with that
injury. The Commission found that Grubbs was entitled to conservative medical treatment
as recommended by Dr. Blankenship; that Grubbs had reached the end of his healing period
no later than August 31, 2015; and that he did not prove entitlement to TTD benefits
beginning September 30, 2015, or any time thereafter. Neither party appealed from the
Commission’s opinion.
3 In April 2019, Grubbs followed up with Dr. Blankenship, who recommended
physical therapy and encouraged Grubbs to see Dr. Cannon for injections. In April 2020,
Dr. Blankenship performed a lumbar arthrodesis. Later that month, Dr. Blankenship
reported that Grubbs was pleased overall with the surgical outcome.
In July 2020, Dr. Blankenship noted that Grubbs was having pain in his low back
and that it was “a different type of pain.” In October, at the six-month follow-up visit, Dr.
Blankenship noted that Grubbs was “doing great with complete resolution of his
preoperative pain” but that he “still has some low back pain mostly midline.” Dr.
Blankenship reported that he thought that Grubbs was at MMI from the standpoint of his
lumbar-fusion surgery but that he had advised Grubbs that he could not return to his
cabinetry job and that he would have permanent restrictions. He recommended that Grubbs
retire. Dr. Blankenship assigned a 12% whole-body impairment rating, which was accepted
by the appellee employer, and the parties stipulated that Grubbs reached MMI from the
April surgery on October 22, 2020. A functional capacity evaluation on November 11, 2020,
showed that Grubbs could perform light-duty work.
In April 2021, Grubbs had an injection by Dr. Cannon for his neck and back pain,
and Dr. Blankenship reported on May 6 that it had afforded him about two weeks of 50%
relief. Dr. Blankenship noted that Grubbs had had twelve physical-therapy visits that had
seemed to help with his pain. He noted that Grubbs complained of mid- and low-back pain
on his left side and reported decreased strength in his left lower extremity. Dr. Blankenship
4 noted that sacroiliac (SI) joint pain is not uncommon after lumbar arthrodesis. He
recommended additional treatment with Dr. Cannon—specifically, a left SI joint injection.
On June 10, an ALJ determined that Grubbs was entitled to permanent partial-
disability benefits in an amount equal to 30% to the body as a whole resulting from the
August 7, 2015 compensable injury. The parties also stipulated that “the prior opinions in
this matter are final.”
Grubbs had an injection by Dr. Cannon in early August 2021, and Dr. Blankenship
reported that Grubbs had gotten 70% relief but was still having some low back pain. In
September, Dr. Blankenship reported that Grubbs’s low back pain and left buttock pain had
gotten significantly worse and that he was offered a left SI joint arthrodesis. Dr. Blankenship
wrote, “Not that there is any question about it, his need for SI joint arthrodesis is directly
related because of his lumbar stabilization. His lumbar stabilization was needed because of
his work-related injury. Therefore it is directly related to his work-related injury.”
On December 1, appellee employer sent Grubbs to see Dr. Frank J. Tomecek for an
independent medical examination (IME). Dr. Tomecek wrote, “In regard to causation of his
current injury, I don’t believe we have definitively established a diagnosis yet.” He wrote that
the findings were consistent with left-sided sacroiliitis but were also consistent with
pseudoarthrosis or malpositioned hardware or adjacent level disk herniation. Dr. Tomecek
noted, “Unfortunately, [Grubbs] did not get significant improvement with his lumbar
fusion.” He felt that further diagnostic testing was necessary and recommended a myelogram
CT scan.
5 Grubbs had a myelogram and post-myelogram CT scan of his thoracic and lumbar
spine, and in a January 17, 2022 follow-up visit, Dr. Tomecek noted a very large osteophyte,
or bone spur, on the left at the top of the SI joint that extended from the SI joint into the
pelvis and retroperitoneal area. Dr. Tomecek also concluded that the left SI joint appeared
to be autofused. He wrote that he disagreed with Dr. Blankenship’s recommendation for an
SI joint fusion because of the autofusion already there. He called it “a very high-risk
procedure for vascular or other organ injury in the face of previous surgery.” He wrote that
he did not recommend surgical intervention but that he did recommend nonsurgical
inventions, including physical therapy and injections.
On February 21, Grubbs saw Dr. Blankenship, who reported that Grubbs told him
that “his SI joint pain is completely resolved.” He told Grubbs that he would see him in one
year for a follow-up visit and reported that Grubbs was at surgical MMI. Dr. Blankenship,
however, arranged for Grubbs to have an MRI on August 2, but there were no significant
findings. Dr. Blankenship stated that the MRI, in fact, “looked good.” Dr. Blankenship
noted, however, on September 12 that Grubbs’s pain had gotten significantly worse and that
he was again complaining of low-back pain. He recommended that Grubbs have another SI
joint injection with Dr. Cannon, which Grubbs had on November 3. Dr. Blankenship wrote
in a December 8 report that the injection helped for about a week but that Grubbs’s pain
had returned. He noted that he went over the risks and benefits of an SI joint arthrodesis
and that Grubbs wanted to proceed.
6 In progress notes dated May 4, 2023, Dr. Tomecek reported that he had reviewed
Grubbs’s August 2022 MRI and stated that “the status of the patient’s fusion is impossible
to assess on this MRI.” He wrote, however, that there was nothing on the MRI that changed
his opinion given on January 17, 2022. Dr. Tomecek repeated his concern that Grubbs had
pseudoarthrosis. He wrote that he “totally” disagreed with Dr. Blankenship’s treatment
recommendation, i.e., SI joint fusion, noting again that the joint was already fused. Dr.
Tomecek opined that
[u]nder the circumstances I would never recommend a SI joint fusion. In other words, in the face of a solid autofusion of the left SI joint confirmed on post myelogram CAT scan and negative provocative testing of all tests used to assess the SI joint[,] I again repeat that I would not recommend a left SI joint fusion.
Dr. Tomecek reported that Grubbs “appears to really want to have this operation of an SI
joint fusion almost whether it helps him or not even though he is really doing very well under
all the circumstances.” Dr. Tomecek noted that Grubbs was “very comfortable today standing
for several minutes walking from room to room and moving and bending.”
Grubbs testified at a hearing before an ALJ in November 2023 that he had not
proceeded with the surgery recommended by Dr. Blankenship in December 2022 because
his condition had temporarily gotten better. He testified that, while sitting in his recliner, he
had stretched his leg out and heard something “pop” in his SI joint. Grubbs said that he felt
relief after that “pop” for two or three weeks but that he could not duplicate that effect. He
testified that his pain seemed to “come back with a vengeance.” Grubbs testified that he uses
an over-the-counter anti-inflammatory medication and sometimes takes a muscle relaxer. He
7 said that he has a TENS unit and a lidocaine pain patch for his back. Grubbs agreed that he
testified in May 2021 that he could not work after his lumbar-fusion surgery and that he still
cannot work. He testified that he takes far fewer medications now and takes no pain
medication. Grubbs conceded that he was able to drive on a trip to Virginia; he fishes every
two weeks or so; and he helped unload his bass boat into the water. Grubbs testified that his
understanding of the SI joint-fusion surgery recommended by Dr. Blankenship is that it
would take about fifteen minutes and was “not that big of a deal.”
An ALJ found that Grubbs was entitled to additional medical treatment, including
SI joint surgery recommended by Dr. Blankenship. The ALJ also found that Grubbs was
entitled to TTD benefits from September 13, 2022, and continuing through a date yet to be
determined. The appellee employer appealed to the Commission, which reversed the ALJ’s
decision.
The Commission noted that Grubbs’s MVA on August 7, 2015, resulted in a
compensable injury affecting his cervical, thoracic, and lumbar spine and that he had reached
MMI on August 31, 2015. Referring to its October 2018 opinion, the Commission noted
that it had found that Grubbs had proved entitlement to Dr. Blankenship’s current treatment
recommendations and that he was entitled to conservative medical treatment recommended by
Dr. Blankenship. The Commission noted that the appellee employer had nevertheless
authorized lumbar arthrodesis performed by Dr. Blankenship on April 9, 2020. The
Commission also found that the appellee employer had paid a 12% permanent anatomical-
impairment rating and that the parties had stipulated that Grubbs reached MMI on October
8 22, 2020. The Commission found that, because Grubbs had not consistently reported relief
from the arthrodesis, he continued to receive treatment and eventually saw Dr. Tomecek for
an IME. The Commission noted that Dr. Tomecek disagreed with Dr. Blankenship’s
recommended surgery because Grubbs’s left SI joint was already fused. The Commission
found that Dr. Tomecek was more credible than Dr. Blankenship and that Dr. Tomecek’s
expert opinion was entitled to more evidentiary weight. The Commission noted that it had
awarded conservative treatment in October 2018, that conservative treatment such as
physical therapy and injections had seemed to benefit Grubbs after the 2020 surgery, and
that Dr. Tomecek was recommending additional conservative treatment for Grubbs’s SI
joint condition. Regarding TTD benefits, the Commission pointed out that it had found in
its October 2018 opinion that Grubbs reached the end of his healing period no later than
August 31, 2015, that there had been no appeal of that decision, and that the parties had
stipulated that the prior opinions were final. The Commission found that the parties
nevertheless stipulated that Grubbs reached MMI on October 22, 2020, from the April 2020
surgery. Moreover, the Commission noted that, although the appellee employer paid a
permanent anatomical-impairment rating and some TTD benefits until February 2022, the
evidence did not demonstrate that Grubbs reentered a healing period at any time after
October 22, 2020. In conclusion, the Commission found that Grubbs did not prove that an
SI joint arthrodesis was reasonably necessary but that he is entitled to additional physical
therapy and injection treatment by Dr. Cannon. The Commission found that Grubbs did
9 not prove entitlement to additional TTD benefits and pointed out that an award of
additional conservative treatment did not extend Grubbs’s healing period.
II. Standard of Review
We review the Commission’s decision in the light most favorable to its findings and
affirm when the decision is supported by substantial evidence. Johnson v. Land O’Frost, Inc.,
2025 Ark. App. 41, 704 S.W.3d 671. Substantial evidence is evidence that a reasonable mind
might accept as adequate to support a conclusion. Id. The issue is not whether the appellate
court might have reached a different result from the Commission but whether reasonable
minds could reach the result found by the Commission: if so, the appellate court must
affirm. Id. It is the Commission’s duty to make determinations of credibility and to weigh
the evidence. Id. The Commission is not required to believe the testimony of the claimant
or any other witness but may accept and translate into findings of fact only those portions
of the testimony it deems worthy of belief. Id.
III. Discussion
A. Reasonably Necessary Medical Treatment
The employer shall promptly provide for an injured employee such medical treatment
as may be reasonably necessary in connection with the injury received by the employee. Ark.
Code Ann. § 11-9-508(a)(1) (Repl. 2012). Reasonably necessary medical treatment may
include that which is necessary to accurately diagnose the nature and extent of a compensable
injury, to reduce or alleviate symptoms resulting from a compensable injury, to maintain the
level of healing achieved, or to prevent further deterioration from the damage produced by
10 the compensable injury. Wright Steel & Mach., Inc. v. Heimer, 2017 Ark. App. 643, 535 S.W.3d
311. The employee has the burden of proving by a preponderance of the evidence that
medical treatment is reasonable and necessary. Id.
Grubbs argues that the Commission’s primary error when it reversed the ALJ was in
its failure to grasp the nature and cause of his sacroiliac injury. He argues that the
Commission referred to its 2018 opinion awarding conservative treatment, apparently
believing that his condition has been static for the five years leading up to its May 2024
opinion. Grubbs argues that both Drs. Blankenship and Tomecek agreed that his SI joint
condition is a degenerative condition brought about by his 2015 compensable injury and
the 2020 surgery, which was reasonable and necessary medical treatment. Grubbs contends
that his condition improved after the 2020 surgery but that the SI joint condition began to
manifest. Grubbs argues that both Drs. Blankenship and Tomecek agree that further
treatment is needed for his SI joint condition but disagree as to the nature of that treatment.
According to Grubbs, Dr. Tomecek thinks a revision of the prior fusion or removal of the
osteophyte might be necessary, while Dr. Blankenship thinks that an SI joint fusion is
needed. Grubbs argues that the surgery recommended by Dr. Blankenship is less invasive
and dangerous than the treatment recommended by Dr. Tomecek and that he (Grubbs) has
more confidence in Dr. Blankenship. Grubbs asserts that a fair-minded person would
conclude that the option offered by Dr. Blankenship is more compelling.
The Commission has the duty of weighing the medical evidence as it does any other
evidence, and the Commission has the authority to accept or reject medical opinions. Cooper
11 Standard Auto., Inc. v. Kelley, 2009 Ark. App. 552, 337 S.W.3d 542. When the Commission
weighs medical evidence and the evidence is conflicting, its resolution is a question of fact
for the Commission. Id. The interpretation given to medical evidence by the Commission
has the weight and force of a jury verdict, and this court is powerless to reverse the
Commission’s decision regarding which medical evidence it chooses to accept when that
evidence is conflicting. Id.
The Commission was presented with two conflicting medical opinions and chose to
believe Dr. Tomecek and give more weight to his opinion. Contrary to Grubbs’s assertion,
Dr. Tomecek did not diagnose sacroiliitis, although he noted that it was a possibility.
Moreover, he particularly disagreed with Dr. Blankenship’s recommended treatment of an
SI joint fusion to treat Grubbs’s condition. Dr. Tomecek explained, after examining a
myelogram CT scan, that the joint was already fused and that Dr. Blankenship’s proposed
treatment was dangerous, not to mention unnecessary. Although Dr. Tomecek mentioned
hardware removal and fusion revision, he was referring to the fact that he thought Grubbs
had pseudoarthrosis, not sacroiliitis. Dr. Tomecek also described surgery to remove the
osteophyte as a “last resort.” Dr. Tomecek recommended conservative treatment such as
physical therapy and injections, which had seemed to help Grubbs in the past.
Grubbs likens his case to Foster v. Kann Enterprises, 2009 Ark. App. 746, 350 S.W.3d
796; however, Foster is distinguishable. Foster suffered a compensable injury, and his treating
physician recommended physical therapy and, alternatively, injections. Due to preexisting
problems, Foster was unable to participate in physical therapy. His treating physician
12 terminated treatment, and Foster requested and was granted a change of physician. The new
physician recommended, among other things, injections, which had not been administered
after physical therapy failed. We said that it was of “paramount importance” that Foster’s
treating physician and the physical therapist had terminated treatment before Foster reached
MMI. We held that the treating physician and the new physician recommended injections
as reasonable treatment for Foster’s neck injury and that the fact that physical therapy had
proved unsuccessful was not a substantial basis for the denial of additional treatment—
injections recommended by both physicians.
Here, Dr. Blankenship and Dr. Tomecek do not agree that SI joint fusion surgery is
reasonably necessary medical treatment for Grubbs. In fact, they do not agree on a diagnosis.
Grubbs asserts that “Dr. Tomecek says the claimant has sacroiliitis.” Dr. Tomecek wrote that
the findings were consistent with that diagnosis, as well as several other conditions, and that
further diagnostic testing was necessary for a definitive diagnosis. Considering the evidence
in the light most favorable to the Commission’s findings and deferring to the Commission’s
interpretation of the medical evidence, we hold that there is a substantial basis for the denial
of relief.
B. TTD Benefits
Temporary total disability is defined as that period within the healing period in which
an employee suffers a total incapacity to earn wages. J.A. Riggs Tractor Co. v. Etzkorn, 30 Ark.
App. 200, 785 S.W.2d 51 (1990). The healing period is defined as “that period for healing
of an injury resulting from an accident.” Ark. Code Ann. § 11-9-102(12) (Supp. 2021). The
13 healing period continues until the employee is as far restored as the permanent character of
the injury will permit. Etzkorn, supra. 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; however, the healing period has not ended so long
as treatment is administered for the healing and alleviation of the condition. Id. Whether
the healing period has ended is a factual determination to be made by the Commission.
Bronco Indus. Servs., LLC v. Brooks, 2021 Ark. App. 279, 625 S.W.3d 753.
Grubbs argues that the Commission ignored medical evidence showing that his SI
joint condition had begun to deteriorate as a result of his compensable spinal injuries and
treatment, including the 2020 surgery. Grubbs maintains that, while he received treatment,
he entered and left healing periods on more than one occasion. He states that it is apparent
from Dr. Blankenship’s report on May 6, 2021, that he had reentered a healing period as
evidenced by his need for treatment of his SI joint. Grubbs asserts that even Dr. Tomecek
agreed that his SI joint was the source of his problems when he stated on December 1, 2021,
that Grubbs was suffering from sacroiliitis. Again, Grubbs has misconstrued Dr. Tomecek’s
opinion because he reported that no diagnosis had been definitively established, and the
Commission credited Dr. Tomecek’s opinions.
As for Grubbs’s assertion that he cannot work, a functional capacity evaluation in
November 2020, i.e., after Grubbs had reached MMI from his lumbar surgery, indicated that
he could perform light-duty work. Dr. Blankenship reported that Grubbs had reached MMI
in February 2022 after Grubbs reported that his SI joint pain was completely resolved.
14 Moreover, Dr. Tomecek’s May 2023 progress notes as well as Grubbs’s own testimony
indicate that Grubbs was getting around well and taking fewer medications generally,
including pain medication.
Grubbs argues that because he is receiving treatment for his SI joint condition, he is
still within his healing period because the conservative treatment is geared toward improving
his condition, which is not yet stable. Even though the Commission approved continued
conservative treatment for Grubbs, this did not extend his healing period or cause him to
reenter a healing period because the injections and physical therapy provided only temporary
relief. The persistence of pain is not sufficient, in itself, to extend the healing period.
Smallwood v. Ark. Dep’t of Human Servs., 2010 Ark. App. 466, 375 S.W.3d 747. Moreover,
pain management that does not improve the underlying condition does not extend the
healing period. Id. Grubbs acknowledges in his brief that “while injections and physical
therapy might provide some short-term relief for the appellant, they are not going to cure the
appellant’s condition or improve his current status.”
The parties stipulated that Grubbs reached MMI on October 22, 2020, from the 2020
surgery performed by Dr. Blankenship—a surgery that the Commission had not found was
reasonably necessary medical treatment. In addition, the appellee employer paid a 12%
permanent-impairment rating assessed by Dr. Blankenship. Permanent impairment is any
permanent functional or anatomical loss remaining after the healing period has been
reached. Johnson v. Gen. Dynamics, 46 Ark. App. 188, 878 S.W.2d 411 (1994). We hold that
15 there is a substantial basis for the denial of additional TTD benefits because Grubbs did not
prove that he reentered a healing period after October 22, 2020.
Affirmed.
BARRETT and MURPHY, JJ., agree.
Walker Law Group, PLC, by: Eddie H. Walker, Jr., for appellant.
Frye Law Firm, P.A., by: William C. Frye, for appellees.