Luten v. Xpress Boats & Backtrack Trailers

285 S.W.3d 710, 103 Ark. App. 24, 2008 Ark. App. LEXIS 495
CourtCourt of Appeals of Arkansas
DecidedJune 18, 2008
DocketCA 08-31
StatusPublished
Cited by1 cases

This text of 285 S.W.3d 710 (Luten v. Xpress Boats & Backtrack Trailers) 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
Luten v. Xpress Boats & Backtrack Trailers, 285 S.W.3d 710, 103 Ark. App. 24, 2008 Ark. App. LEXIS 495 (Ark. Ct. App. 2008).

Opinion

Sarah J. Heffley, Judge.

Appellant appeals the Commission’s order that reversed the order of the administrative law judge (ALJ) and found that appellant had failed to prove that he is entitled to additional temporary total disability benefits. On appeal, appellant contends that the Commission’s opinion is not supported by substantial evidence; that the Commission mischaracterized critical evidence; and that the Commission unlawfully required appellant to prove the continuation of his healing period with objective evidence. We agree that there is a lack of substantial evidence to support the Commission’s decision; therefore, we reverse and remand.

Appellant sustained an admittedly compensable back injury on August 16, 2004, while attempting to load a boat onto a trailer. Appellant was examined by his family physician, Dr. Robert Daniels, on August 18, 2004. An MRI performed on August 20, 2004, revealed diffuse degenerative changes throughout appellant’s lumbar spine and a foraminal disc herniation at L5-S1. Appellant had no history of prior back problems or back injuries.

On October 1, 2004, appellant was examined by Dr. Michael Atta, appellees’ company physician, whose examination revealed tenderness along the left paralumbar musculature with mild muscle spasms noted. Dr. Atta assessed appellant’s condition as low back pain with L5-S1 herniated nucleus pulposus and referred appellant to Dr. James Arthur for a neurosurgical evaluation “to determine further management of his current condition.” Dr. Atta also ordered that appellant be kept off work due to the narcotic medications he was taking.

On October 13, 2004, appellant was seen by Dr. James Arthur, a neurosurgeon. In his report of that visit, Dr. Arthur noted that appellant had “diminished range of motion in the lumbar spine with paraspinous muscle spasm” and was suffering from a “fairly significant lumbar strain injury.” Dr. Arthur recommended a lumbar epidural steroid injection and a rehabilitative exercise program prior to appellant returning to work.

Appellant was next seen by Dr. Bruce Smith, an orthopedic surgeon, on October 25, 2004. Dr. Smith noted that appellant had some tenderness in the left paralumbar area and some subjective radicular symptoms into the left leg. Dr. Smith also acknowledged that the lumbar MRI showed a disc bulge at L5-S1, but stated that “it is really on the right inconsistent with his present clinical findings.” Dr. Smith recommended a lumbar epidural steroid injection and physical therapy. He also stated that appellant remained unable to return to work.

Appellant underwent a lumbar spine epidural steroid injection on October 26, 2004, and followed up with Dr. Smith on November 3, 2004. Dr. Smith noted that appellant was “basically unchanged” since the epidural steroid injection and was still complaining of pain in the left paralumbar area. Dr. Smith concluded that appellant had suffered a lumbar strain, which was “resolving,” and that there was “nothing surgical” about appellant’s condition. On November 12, 2004, Dr. Smith released appellant from his care and to full work duty as of November 3, 2004.

Appellant did not return to work and was seen by Dr. Ron Williams, a neurosurgeon, on December 7, 2004. Dr. Williams ordered a repeat MRI of appellant’s lumbar spine, and this MRI showed multilevel degenerative disc disease and a combination of diffuse bulge and spur at the L2-3 and L4-5 levels. After evaluating these MRI findings, Dr. Williams opined that while most of appellant’s pain was on his left, he (Dr. Williams) did not think it was very significant, and there was nothing surgically to be done for appellant. Dr. Williams ordered a second epidural steroid injection and a work evaluation “to see ifit is safe for [appellant] to return to work.”

Appellant underwent a functional capacity evaluation on January 18, 2005. The evaluator found that appellant “put forth inconsistent effort and demonstrates inconsistencies with inappropriate illness responses.” The evaluator concluded that appellant could perform work at the “light” physical demand classification. After the evaluation, appellant returned to Dr. Williams on February 1, 2005, and Dr. Williams noted appellant was still having trouble with his left hip. Dr. Williams recommended a repeat MRI of the back and an MRI of the left hip. After these MRIs were performed, Dr. Williams noted a paralabral cyst on appellant’s left hip and referred appellant to Dr. William Hefley, an orthopedic surgeon.

Appellant saw Dr. Hefley on April 6, 2005. After examining appellant and the MRIs, Dr. Hefley opined that appellant was suffering “discogenic lumbar pain with referred pain into the left lower extremity” and that appellant’s symptoms were not “really reflective of hip pathology.” Dr. Hefley recommended a course of aggressive and well-coordinated lumbar rehabilitation and physical therapy, and he noted that appellant had not had any physical therapy or rehabilitation made available to him in the seven and a half months since his injury. Dr. Hefley also recommended that appellant see a pain management specialist.

Pursuant to Dr. Hefley’s suggestion, Dr. Williams arranged for appellant to receive physical therapy three times a week for six weeks, a total of eighteen sessions. However, only five of these sessions were approved by appellant’s insurance carrier. After these sessions, appellant again saw Dr. Williams, who noted that appellant’s back pain had improved but his hip pain had not. On June 15, 2005, Dr. Williams advised appellant to remain off work until further notice.

On July 10, 2005, appellant was seen by Dr. Barry Baskin for an independent medical evaluation at the appellees’ request. Dr. Baskin opined that appellant’s pain was coming primarily from his back and not from his hip, but he noted that there was “still some question as to what this gentleman’s actual pain producer is.” Dr. Baskin recommended a myelogram and a post-myelogram CT to assist in defining the source of appellant’s pain. Dr. Baskin also stated that appellant had not received adequate physical therapy with only five sessions, and he recommended that appellant undergo a work-hardening program with more extensive physical therapy and reconditioning.

Dr. Williams referred appellant to Dr. Robert Kleinhenz, an orthopedic surgeon, to have the myelogram and post-myelogram CT performed; however, Dr. Kleinhenz discontinued his orthopedic practice and the tests were not performed. On August 22, 2005, Dr. Williams opined, in response to a letter from appellant’s insurance carrier, that he did not know if appellant had reached maximum medical improvement and that appellant’s injury would produce a five percent whole person impairment based on the AMA guidelines.

A hearing was held on February 16, 2006, before the ALJ to determine appellant’s entitlement to additional temporary total disability benefits. Appellees contended that appellant was not entitled to additional temporary total disability benefits because he had reached the end of his healing period on November 4, 2004, after Dr. Smith released him to return to full duty. In his opinion, the ALJ found:

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Bluebook (online)
285 S.W.3d 710, 103 Ark. App. 24, 2008 Ark. App. LEXIS 495, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luten-v-xpress-boats-backtrack-trailers-arkctapp-2008.