Jaynes v. Tempworks Management Services, Inc., 103118 ARWC, G703512

Case DateOctober 31, 2018
CourtArkansas
GARY D. JAYNES, EMPLOYEE CLAIMANT
v.
TEMPWORKS MANAGEMENT SERVICES, INC., EMPLOYER RESPONDENT
WESCO INSURANCE COMPANY/AMTRUST NORTH AMERICA, CARRIER/TPA RESPONDENT
No. G703512
Arkansas Workers Compensation
Before The Arkansas Workers' Compensation Commission
October 31, 2018
         Hearing before the Arkansas Workers’ Compensation Commission (the Commission), Administrative Law Judge (ALJ) Mike Pickens, in Little Rock, Pulaski County Arkansas.           The claimant was represented by the Honorable Gary Davis, Davis Law Firm, Little Rock, Pulaski County, Arkansas.           The respondents were represented by the Honorable William C. Frye, Frye Law Firm, North Little Rock, Pulaski County, Arkansas.           MIKE PICKENS ADMINISTRATIVE LAW JUDGE.          INTRODUCTION          A hearing was conducted in the above-styled claim on March 27, 2018 (Hearing Transcript, Volume I), and on September 5, 2018 (Hearing Transcript, Volume II). During the time between the two (2) hearing dates, the claimant underwent an independent medical evaluation (IME), to which the parties mutually agreed, by Dr. C. Lowry Barnes, an orthopedic surgeon and the chair of the Department of Orthopaedic Surgery at the University of Arkansas for Medical Sciences (UAMS). The delay in time between the first and second sessions of the hearing was primarily due to the facts the claimant missed his first IME appointment date with Dr. Barnes; Dr. Barnes ordered an updated electromyographic nerve conduction study (EMG) before he issued his final IME report on July 18, 2018; and, thereafter, the claimant “took it upon himself” (without the prior knowledge of his attorney) to present himself for evaluation and treatment with a neurosurgeon, Dr. Scott Schlesinger, although he had already been seen and evaluated by two (2) other neurosurgeons, Dr. Steven Cathey and Dr. Luke Knox.          A Prehearing Order was filed on February 7, 2018, wherein the parties agreed to the following stipulations, which they affirmed at the hearing:
1. The Commission has jurisdiction of this claim.
2. The employer/employee/carrier-TPA relationship existed on March 8, 2017, when the claimant sustained compensable injuries to his [lower] and [left] leg.
3. The claimant’s average weekly wage at the time of his compensable injuries was $1,259.37, entitling him to the maximum compensation rates of $661.00 for temporary total disability (TTD) and $496.00 for permanent partial disability (PPD) benefits.
(Commission Exhibit 1 at 1-2; and Tr. I at 3) (Bracketed material added).          By agreement of the parties, the issues litigated at the hearing were:
1. Whether the claimant is entitled to an eleven percent (11%) to the body-as-a-whole (BAW) impairment rating as a result of his admitted compensable injuries.
2. Whether the claimant is permanently and totally disabled (PTD) or, alternatively, has sustained wage loss disability in excess of the 11% impairment rating in an amount to be determined by the Commission; and
3. Whether the claimant’s attorney is entitled to a fee on these facts
(Tr. I, Commission Exhibit 1 at 2; Tr. I at 8-12).          The claimant contends he has sustained 11% permanent anatomical impairment to the BAW as a result of his March 8, 2017, compensable lower back and left leg injuries. He contends further that he is PTD or, alternatively, is entitled to wage loss disability benefits in an amount to be determined by the Commission; that he remains symptomatic and in need of ongoing medical treatment; and that his attorney is entitled to a fee based on the controverted indemnity benefits. The claimant reserves the right to pursue any and all other benefits to which he may be entitled pursuant to the Arkansas Workers’ Compensation Act (the Act) for future determination and/or hearing. (Tr. I, Comms’n Ex. 1 at 2; Tr. I at 8-12)          The respondents contend the claimant sustained compensable injuries to his lower back and left leg on March 8, 2017, and that they have paid all appropriate benefits for these compensable injuries. They argue the claimant was referred to Dr. Cathey for neurosurgical evaluation, and Dr. Cathey opined he was able to return to work without any permanent anatomical impairment or work restrictions. Thereafter, Dr. Knox, another neurosurgeon, believed the claimant had a femoral nerve injury, so he referred him for a Functional Capacity Evaluation (FCE), the results of which were “invalid.” Dr. Knox assigned the claimant the eleven percent 11% impairment rating, and released him to return to work without restrictions. (In the Prehearing Order, the respondents contended the claimant was scheduled to be examined by Dr. Moore on December 6, 2017, and they reserved the right to state their final position on permanent anatomical impairment after that visit. At the hearing the respondents contended the claimant was not entitled to any additional indemnity benefits.) Finally, the respondents contend the claimant has no functional and/or work restrictions and, therefore, is not entitled to any wage loss disability benefits. (Tr. I, Comms’n Ex. 1 at 3; Tr. I at 10-12).          During the March 27, 2018 hearing session, the parties agreed to the IME with Dr. Barnes, the primary purpose of which was to rule-out any serious medical condition related to the claimant’s left hip. (Tr. I at 66-69; 87-88) Consistent with the Arkansas Court of Appeals’ holding in Burkett v. Exxon Tiger Mart, 2009 Ark.App. 93, 304 S.W.3d 2 (Ark.App. 2009), the hearing was recessed, not concluded; the ALJ made no final decision on the relevant issues; the record remained open for the sole purpose of receiving Dr. Barnes’s IME report and the result(s) of any diagnostic test(s) he ordered; as well as the transcript of Dr. Barnes’s evidentiary deposition, should either party choose to exercise their right to take it. (Tr. I at 66-69; 87-88).          After the ALJ and parties received Dr. Barnes’s IME reports, and the results of the updated EMG study he ordered, neither party chose to take his evidentiary deposition. Before the hearing was reconvened, the respondents sought and obtained additional medical reports from Drs. Morse and Knox. The claimant objected to these new reports being introduced into evidence at the hearing, and the ALJ sustained this objection. Thereafter, the claimant “took it upon himself” (Tr. II, Comms’n Ex. 2 at 3-4) to see yet another neurosurgeon, Dr. Schlesinger, and he asked that these reports be made a part of the hearing record. The respondents objected, contending this was outside the scope of the agreed IME, and that Dr. Schlesinger was an unauthorized treating physician. The ALJ sustained this objection, as well. The claimant advised he was ready to reconvene the hearing, at which time the second session of the hearing was scheduled, and commenced on September 5, 2018. Consistent with the agreed IME, at the hearing the ALJ admitted into evidence only Dr. Barnes’s IME reports and the updated EMG test results Dr. Barnes requested (Tr. II at 3-12; Tr. II, Comms’n Ex. 1 at 1-12; Tr. II, Comms’n Ex. 2 at 1-11; Claimant’s Proffered Exhibit 1; Respondents’ Proffered Ex. 1).          STATEMENT OF THE CASE          The claimant, Gary Douglas Jaynes, is fifty-five (55) years old, a high school graduate, and has worked as a master electrician since 1997. (Tr. I at 24-25) On March 8, 2017, he was working, standing in a ditch, and his left foot sunk down into the mud up to his ankle or just above it. (Tr. at I at 28-28; 60-63) As he pulled his left foot out of the mud, the claimant felt something “pop” in his left hip. His right foot was in the mud, too, but he explained it was easier to get out than his right foot. (Tr. I at 29).          The claimant first sought medical treatment following this incident on March 14, 2017, when he presented himself to Dr. Jason Lofton in De Queen, Arkansas. (Tr. I, Respondents’ Exhibit 1 at 9-12). The claimant also treated with a chiropractor at Southwest Chiropractic, and with a doctor at Irvin & Dibrell Clinic in Mountain View. (Tr. I, Claimant’s Exhibit 1 at 1-4; and 5-6). The Irvin & Dibrell Clinic office note of March 23, 2017, indicates the claimant underwent x-rays of his left hip, and the word “Arthritic Pain” is circled on this note. (Id.)          Thereafter, the claimant treated with an orthopedic surgeon, Dr. Charles D. Varela, in...

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