Bush, 011222 ARWC, G802764

Docket NºClaim G802764
Case DateJanuary 12, 2022
CourtKansas
ROBIN L. BUSH, EMPLOYEE CLAIMANT
SHERWOOD TRACTOR, EMPLOYER RESPONDENT #1
MIDWEST INSURANCE COMPANY/MIC RISK MANAGEMENT SERVICES, LLC, INSURANCE CARRIER, TPA RESPONDENT #1
DEATH & PERMANENT TOTAL DISABILITY TRUST FUND RESPONDENT #2
Claim No. G802764
Arkansas Workers Compensation
Before the Arkansas Workers' Compensation Commission
January 12, 2022
         Hearing before Administrative Law Judge, James D. Kennedy, on the 9th day of November, 2021, in Little Rock, Pulaski County, Arkansas.           Claimant is represented by Laura Beth York, Attorney at Law, Little Rock, Arkansas.           Respondents #1 are represented by James Arnold II, Attorney at Law, Fort Smith, Arkansas.           Respondents #2 are represented by Christy L. King, Attorney at Law, Little Rock, Arkansas.          OPINION           JAMES D. KENNEDY, Administrative Law Judge.          STATEMENT OF THE CASE          A hearing was conducted on the 9th day of November, 2021, to determine the issues of additional medical, temporary total disability (TTD) from November 7, 2019, to a date to be determined, and attorney's fees. It was stipulated at the time of the hearing that the respondents had paid the eight percent (8%) impairment rating and that there was no claim for attorney's fees on those benefits. In addition, the parties stipulated the claimant earned an average weekly wage of $806.89, sufficient for a TTD/permanent partial disability (PPD) rate of $538.00/$404.00 based upon figures from the Trust Fund. Due to the fact the average weekly wage was agreed to, the Trust Fund waived its appearance. A copy of the Pre-hearing Order was marked "Commission Exhibit 1" and made part of the record without objection. The Order provided that the parties stipulated that the Arkansas Workers' Compensation Commission has jurisdiction of the within claim and that an employer/employee relationship existed on March 23, 2018, when the claimant sustained a compensable work-related injury to her back. The claim was accepted as compensable by the respondents, who have paid some benefits. The claimant received an impairment rating of eight percent (8%) on October 29, 2019, and as stated above, this rating had been paid by the respondents at the time of the hearing. The parties provided post hearing briefs and they are blue backed and attached to this Opinion.          The claimant's and respondents' #1 responses were set out in their respective responses to the Pre-hearing Questionnaire and made a part of the record without objection. The sole witness was Robin L. Bush, the claimant. From a review of the record as a whole, to include medical reports and other matters properly before the Commission, and having had an opportunity to observe the testimony and demeanor of the witness, the following findings of fact and conclusions of law are made in accordance with Ark. Code Ann. §11-9-704.          FINDINGS OF FACT AND CONCLUSIONS OF LAW          1. The Arkansas Workers' Compensation Commission has jurisdiction over this claim.          2. That an employer/employee relationship existed with Sherwood Tractor on March 23, 2018, when the claimant sustained a compensable work-related injury to her back that was accepted by Respondents #1 as compensable.          3. That at the time of the injury, the claimant earned an average weekly wage of $806.89, sufficient for a TTD/PPD rate of $538.00/$404.00.          4. That the claimant has satisfied the required burden of proof to prove by a preponderance of the credible evidence that the treatment by Doctor Raji, Doctor Quershi, and Nisi Kahn, APRN, is reasonable and necessary.          5. That the claimant failed to prove by a preponderance of the credible evidence that the treatment by Doctor Kilough that was provided after Doctor Roman's finding of the claimant reaching MMI is reasonable and necessary.          6. That the claimant failed to prove by a preponderance of the credible evidence that the treatment by the White County Emergency Room on August 5, 2020, is reasonable and necessary in connection with the work-related injury on March 23, 2018, but is in fact due to an intervening cause.          7. The claimant has failed to prove by a preponderance of the credible evidence that the spinal cord stimulator is reasonable and necessary.          8. That the claimant has proven by a preponderance of the credible evidence that she is entitled to TTD from March 26, 2021, through the date of April 9, 2021, and only for these dates.          9. The claimant is entitled to attorney fees pursuant to Ark. Code Ann. § 11-9-715. This award shall bear interest at the legal rate pursuant to Ark. Code Ann. § 11-9-809. If not already paid, the respondents are ordered to pay for the cost of the transcript forthwith.          REVIEW OF TESTIMONY AND EVIDENCE          The Pre-hearing Order, along with the Pre-hearing Questionnaires of the parties, were admitted into the record without objection. The claimant submitted one (1) exhibit, which was admitted into evidence without objection, consisting of 234 pages of medical records. This was the only exhibit of record.          The claimant, Robin L Busch, was the only witness called. She testified she was fifty-two (52) years old at the time of the hearing, completed the eleventh grade, and obtained her GED in 2008/2009. She then received a scholarship and obtained an associate degree in general technology, going through the automotive technology and the diesel technology program, graduating in 2011. (Tr. 7) The claimant began working for Sherwood Tractor as a tractor technician starting in 2011, working for four (4) years, when she then became the shop foreman/lead technician in 2015, and after about eight (8) months, left her employment. (Tr. 9) She then opened her own shop, named Robin's Nest. She worked there as a mechanic, but the business did not obtain a sufficient number of customers, so she returned to Sherwood Tractor. (Tr. 10) Robin's Nest just "stopped." She worked as a shop foreman/lead technician on her return to Sherwood Tractor and was the only female certified mechanic for Mahindra in the world. (Tr. 11)          On March 23, 2018, she was working on a 100-horsepower tractor that came in needing the rear axle rebuilt. She was removing the rear tire which was "loaded" and was trying to keep the tire from falling on her and she twisted and injured her back. The respondents accepted the claim and sent her to Sherwood Urgent Care, where she received an MRI in April of 2018. The medical report provided she had a disc protrusion at L3-4. She then was sent to Doctor Vargus for conservative treatment, which consisted of injections which did not help. She then saw Doctor Seale in September of 2018 for lumbar surgery. (Tr. 12, 13) After surgery, she testified she fell as they were placing her into the car and knew something was wrong. She kept falling at home and could tell that something was wrong with her knee. She was then authorized to see Doctor Killough, and was also approved to see Doctor Roman. (Tr. 14) She stated that she was diagnosed with CRPS (Complex Regional Pain Syndrome) on the visit of the 19th of October, 2018. Doctor Seale released the claimant to Doctor Roman, who made the diagnosis. She received blocks and injections, and some of them helped temporarily. (Tr. 15)          The claimant received an MRI of the right knee and Doctor Gordon opined that she did not need surgery, but that her problem was secondary to CRPS. The claimant was allowed to return to work and the respondent accommodated her restrictions and provided sedentary-type duty. (Tr. 16) The claimant then obtained a change of physician and presented to Doctor Qureshi. (Tr. 17) She testified that her right leg would sometimes give out and Doctor Qureshi recommended a spinal cord stimulator, which was denied by the respondents. (Tr. 18) She then returned to Doctor Roman who performed a functional capacity exam which provided she could return to work in a light duty category. (Tr. 19) The claimant stated that after her employer received all of the information, she was told that they had no work within her restrictions and was terminated, with her last day of work being November 6, 2019.          The claimant admitted she owned the property where the shop, Robin's Nest, was located, but denied performing any work since November 6, 2019. She additionally denied performing any work in the shop or renting the shop out, although she did admit that she allowed other people the use of it and her $40,000 worth of tools. (Tr. 20, 21) She also admitted her boyfriend used the shop.          In regard to the...

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