BEFORE THE ARKANSAS WORKERS' COMPENSATION COMMISSION

CLAIM NO. G703512 GARY D. JAYNES, EMPLOYEE

CLAIMANT

TEMPWORKS MANAGEMENT SERVICES, INC., EMPLOYER

RESPONDENT

WESCO INSURANCE COMPANY/ AMTRUST NORTH AMERICA, INSURANCE CARRIER/TPA

RESPONDENT

OPINION FILED MAY 13, 2019 Upon review before the FULL COMMISSION in Little Rock, Pulaski County, Arkansas. Claimant represented by the HONORABLE GARY DAVIS, Attorney at Law, Little Rock, Arkansas. Respondents represented by the HONORABLE WILLIAM C. FRYE, Attorney at Law, North Little Rock, Arkansas. Decision of Administrative Law Judge: Reversed.

OPINION AND ORDER

The claimant appeals an administrative law judge’s opinion filed

October 31, 2018. The administrative law judge found that the claimant

failed to prove he was entitled to permanent anatomical impairment, wage-

loss disability, or permanent total disability benefits. After reviewing the

entire record de novo, the Full Commission finds that the claimant proved

he was entitled to permanent anatomical impairment in the amount of 11%.

We find that the claimant proved he sustained wage-loss disability in the

amount of 10%.

JAYNES - G703512 2

I. HISTORY

Doug Jaynes, now age 56, testified that he graduated from high

school in 1981 and became an electrician in 1983. Mr. Jaynes testified that

he had been a Master Electrician since 1997. The claimant testified that he

performed commercial and industrial work which often required heavy

manual labor. The parties stipulated that the claimant “sustained

compensable injuries to his back and leg” on March 8, 2017. The claimant

testified that he was working in a muddy ditch: “They was handing me

pipes off the top side. They was handing it down, and I got – stood in place,

and my foot got submerged up underneath the mud. And when we got

through, meaning 12 minutes into the deal, then I tried to raise my [left] leg

and I could not. I tried three times, and I could not raise it out. It had to be

literally dug out.”

According to the record, the claimant treated at Lofton Family Clinic

on March 14, 2017: “He pulled his leg out of a mud hole when pain started.

Has been on TENS unit, ibuprofen, Aleve with no relief. He took some left

over Norco which helped.” Dr. James D. Lofton diagnosed “54 year old

male here with complaint of left hip pain of uncertain etiology – possible

pulled muscle vs. tendonitis vs. bursitis vs. other.”

Dr. Charles D. Varela noted on June 12, 2017, “The patient is a 54-

year-old male, who reports he has injured his left hip region on 3/8/17. He

JAYNES - G703512 3

says his left foot was stuck in mud at that point and he pulled on his left hip.

The patient complains of pain over the lateral aspect of his left hip radiating

down to his knee since that time….Since the patient is Work Comp, we will

get MRI scan of his left hip to rule out any occult lesion. However, the

patient is advised that he can do normal activities and is allowed to return to

work without restriction as tolerated.”

An MRI of the claimant’s left hip on June 14, 2017 showed minimal

fluid and mild degenerative arthrosis but no acute inflammation. An MRI of

the claimant’s lumbar spine was taken on June 29, 2017 with the following

impression:

Multilevel spondylosis is seen with foraminal narrowing worse on the left side as described above. Central disc protrusions are noted at L4-5 and L5-S1. Significant narrowing of the thecal sac is seen at L4-5 where there is also slight narrowing of the subarticular regions where the traversing L5 nerve roots would be located, worse on the left side.

Dr. Varela gave the following impression on July 7, 2017: “Question

L4-L5 nerve root compression secondary to disk protrusion. PLAN: It is

difficult to assess whether this is acute or chronic and whether surgical

intervention is necessary. I recommend referral for spinal surgery

evaluation. This will be performed by Dr. Steven Cathey in Little Rock. We

will limit his restriction to activity as tolerated and no lifting greater than 20

lbs and avoid bending and stooping.”

JAYNES - G703512 4

Dr. Steven L. Cathey corresponded with Shy Cox on July 17, 2017:

Thank you for your introductory letter of 7/12/17, as well as the medical records you provided regarding Mr. Gary Jaynes. As you recall, he was seen today for the purpose of an independent medical evaluation. The patient presents with chronic, left-sided lower back pain with radiation through to his left groin and anterior thigh. The patient relates the onset of these symptoms to an occupational injury suffered on 3/8/17 while working in South West Arkansas. The patient describes the mechanism of injury as submersion of his left leg in deep mud where it literally became trapped. He wrenched his hip and leg while being extricated. His pain began shortly thereafter…. Although the patient says that he remained “on the clock” for several days after the occupational injury in question, he has not returned to work since this event…. The patient, his sister, his son and I reviewed the 6/29/17 MRI scan of his lower back. There are multilevel degenerative changes, but I did not identify a significant disc herniation, nerve root compression, spinal stenosis, etc. The radiologist in his report agrees there are degenerative changes but does not mention an acute lumbar disc herniation that can be attributed to the occupational event of 3/8/17. Ms. Cox, unfortunately, Mr. Jaynes is not a candidate for spinal surgery or other neurosurgical intervention. Since he is now over four months out from the injury in question, I believe he has reached maximal medical improvement. There is no impairment rating from a neurosurgical standpoint as there are no objective findings either clinically or radiographically that can be attributed to the event. The patient and his family seem understandably frustrated as there does not appear to be an easy remedy to the patient’s current symptoms. I certainly have no problem should he decide to pursue a second neurosurgical/orthopaedic opinion. As far as his job is concerned, I agree with Dr. Varela that he can return to work based on today’s exam without restriction

JAYNES - G703512 5

and can also pursue the activities of daily living without restriction as well….

Dr. D. Luke Knox reported on September 5, 2017:

Mr. Jaynes was seen in the Northwest Arkansas Neurosurgery Clinic on 09/05/17 for a chief complaint of left anterior thigh pain and numbness with abnormal sensation. The issue started about 03/08/17. Mr. Jaynes is a 55-year-old, right-handed white male who developed anterior thigh pain after getting his left leg stuck in the mud up to the midcalf area. He jerked his leg trying to get the leg unstuck and felt hip pain and it popped. He reported his injury to his employer and was sent to the doctor five days later. He was treated with steroids and anti-inflammatories and was sent to the orthopedist who told him it was a herniated disc. The orthopedist felt he had nothing to offer. He was sent to Dr. Cathey, who told him it was nothing neurosurgical and felt it was not related to his lumbar spine…. IMAGING STUDIES: Reviewing his MRI scan, I could discern no evidence of significant lumbar abnormalities that would be causing his difficulties. I agree wholeheartedly with Dr. Cathey. I do not believe this is related to his lumbar spine, but rather a nerve injury over his groin area, and possibly even related to a lateral femoral cutaneous nerve of the thigh. PLAN: I asked that he get a neurology consultation as well as electrical studies. He is to return to clinic so we can review these studies. I did give him the okay to return to work on a light-duty basis with a 10 pound weight restriction. He is to return to see me after he has had a chance to complete his consult as well as electrical studies….

Dr. Miles M. Johnson provided a Neurological Evaluation/ Electro-

diagnostic Report on September 20, 2017:

JAYNES - G703512 6

Patient is a 55-year-old right-handed white male who was injured March 2017; his left lower extremity was stuck in some mud and he forcefully tried to jerk it out. Since that time he has had pain in the left thigh when he ambulates. He notes constant numbness in the medial anterior thigh as well. There is occasional numb sensation in the inner left leg. He denies any significant back pain. Patient has been seen by Dr. Knox and is referred for electrodiagnostic testing of the left lower extremity…. SUMMARY: Left peroneal and tibial motor studies are normal. Femoral response non-recordable. This is felt secondary to the patient’s habitus. Left superficial peroneal, sural, and medial plantar sensory responses were normal. H-reflex latencies are symmetric and within normal limits. EMG examination of the left lower extremity was significant for abnormal spontaneous potentials in the vastus medialis, vastus lateralis, and rectus femoris. Paraspinals were unrevealing. ASSESSMENT: Studies consistent with an incomplete left femoral neuropathy versus possible lumbar radiculopathy, approximate L2-L4 levels….

Dr. Knox noted on October 2, 2017, “I reviewed the test results by

Dr. Miles Johnson, demonstrating consistent findings with an incomplete left

femoral neuropathy. He did note that there possibly was a lumbar

radiculopathy approximating the L2, L3 and L4 levels. He had undergone

previously a negative MRI scan of the lumbar spine, so I believe this to be

related to the incomplete left femoral neuropathy. PLAN: He is nine months

into his continuing difficulties and I have recommended that he go ahead

and complete a Functional Capacity Evaluation and return to clinic.”

JAYNES - G703512 7

The claimant participated in a Functional Capacity Evaluation on

October 10, 2017 after which it was reported in part: “The results of this

evaluation indicate that an unreliable effort was put forth, with 40 of 57

consistency measures within expected limits….Mr. Jaynes completed

functional testing on this date with unreliable results. Overall, Mr. Jaynes

demonstrated the ability to perform work in at least the SEDENTARY

classification of work as defined by the US Dept. of Labor’s guidelines over

the course of a normal workday with limitations as defined above.”

Dr. Knox noted on October 24, 2017:

Mr. Gary Jaynes was seen in the Northwest Arkansas Neurosurgery Clinic on 10/24/17 for follow-up. He has been followed for a femoral neuropathy related to his workers’ compensation injury last spring. We had him undergo a Functional Capacity Evaluation that was completed by Stuart Jones and Rick Byrd on 10/10/17. It was felt that he put forth 40 out of 57 consistency measures within expected limits. The evaluation indicated that he did not put forth a consistent effort. It was felt that he had unreliable results, and the conclusion was that he had the ability to perform work in at least a sedentary classification of work as defined by the U.S. Department of Labor guidelines over the course of a normal work day. This is defined as occasionally lifting up to 10 pounds, including up to 33% of the day, and frequently and constantly lifting negligible weight. From the standpoint of his positive electrical studies that demonstrated the L2, L3 and L4 findings, specifically related to the femoral nerve injury, according to the AMA’s Guides to the Evaluation of Permanent Impairment, Fourth Edition, strength testing is derived from Page 77, Table 38. He would qualify for a Grade IV weakness of his hip flexors. Concerning the impairments from nerve deficits, Table 68, Page 89, under

JAYNES - G703512 8

the subheading of “femoral,” I believe it would be reasonable for him to qualify for a 10% permanent partial disability for a partial motor loss. He has diminished sensation for 1%. Under the subheading of “dysesthesia,” he had no complaints of dysesthesia, so that would be zero. He would qualify for an 11% permanent partial disability to the body as a whole. This is the 10 and the 1 percent added together for a total of 11%. According to the Functional Testing Centers, he was released to a sedentary classification of work; however, he had unreliable results. I feel, within a reasonable degree of medical certainty, that Mr. Gary Jaynes is within no harm of injuring himself any further. I assured him that his femoral nerve injury will continue to improve and that he could probably pursue any job requirements so necessary. Consequently, he was returned to a full work schedule.

Dr. Knox stated on October 24, 2017, “Gary Jaynes is a patient at

our clinic. He was seen in our clinic on 10/24/17 and has reached that point

of maximum medical improvement.” The claimant informed Dr. Knox on

November 20, 2017 that his post-injury pain was worsening. Dr. Knox

assessed “1. Lower limb pain, anterior, left. 2. Injury of left femoral nerve,

subsequent encounter.”

Dr. Michael W. Morse examined the claimant on December 6, 2017

and provided the following assessment:

I reviewed the patient’s MRI images. He has mild degenerative changes L4-5 and L5-S1. In addition he had an MRI of the left hip that did not show any significant pathology. His FCE showed that he did not put forth a consistent effort….

JAYNES - G703512 9

He saw Dr. Luke Knox who felt he had mild weakness of the quadriceps and a slightly decreased left patellar jerk. Dr. Knox found decreased sensation in an L2-4 distribution on the left. He gave the patient an 11% impairment rating based upon the EMG. He also released the patient to full duty with no restrictions. He had an EMG that showed 1+ denervation in his quadriceps muscle. Other extremity L2 muscles such as the iliopsas and adductor muscles were not studied. The doctor performing the test noted normal strength and reflexes. There is no provision for giving the patient impairment based upon EMG abnormalities. Both Dr. Knox and Dr. Cathy (sic), a neurosurgeon, feel that this was not coming from his lumbar spine. The patient’s mechanism of injury is one that is not consistent with a femoral neuropathy. His examination is not consistent with a femoral neuropathy. He has a nonanatomic sensory loss. He also complains of numbness that will go down into his right leg. Based upon all of those and using the AMA guidelines to evaluation of permanent impairment fourth edition page 88/89, there is no permanent impairment. The impairment is based upon 3 components: Motor deficits, sensory deficits, and dysesthesia. He has no motor deficits and a nonanatomic sensory deficit. He has some complaints of dysesthesia, but based upon all the factors above, I did not give him an impairment for that. He is released to return to work full-time with no restrictions. There is no need for ongoing medical treatment related to Mister Jayne’s 3/8/17 work-related injury.

A pre-hearing order was filed on February 7, 2018. According to the

text of the pre-hearing order, the claimant contended the following: “1. That

he has sustained eleven percent (11%) permanent anatomical impairment

JAYNES - G703512 10

to the body as a whole as a result of his March 8, 2017 compensable back

and leg injuries; 2. That he is entitled to wage-loss disability benefits in an

amount to be determined; 3. That the aforementioned benefits have been

controverted for purposes of payment of an attorney’s fee; 4. That he

reserves the right to pursue any and all other benefits to which he may

become entitled in the future.”

The respondents contended, “1. That the claimant sustained

compensable injuries to his back and legs on March 8, 2017, and that they

have paid all appropriate benefits for these compensable injuries; 2. That

the claimant was referred to Dr. Steven Cathey for neurosurgical

evaluation, and that Dr. Cathey opined that the claimant was able to return

to work without any permanent anatomical impairment or work restrictions;

3. That the claimant was thereafter treated by Dr. Knox, who believed the

claimant had a femoral nerve injury, and who sent the claimant for a

Functional Capacity Evaluation (FCE), the results of which were ‘invalid.’

Dr. Knox assigned the claimant the eleven percent (11%) body-as-a-whole

impairment rating, and released the claimant back to work without

restrictions; 4. That the claimant was scheduled to be examined by Dr.

Moore on December 6, 2017, and the respondents reserve the right to state

their final position on permanent anatomical impairment after this visit.

JAYNES - G703512 11

5. That the claimant has no functional and/or work restrictions and,

therefore, is not entitled to wage-loss disability benefits.”

An administrative law judge scheduled a hearing on the following

issues:

1. Whether the claimant is entitled to an 11% body-as-a-whole impairment rating as a result of his compensable injuries. 2. Whether the claimant sustained any wage-loss disability as a result of his compensable injuries. 3. Whether the claimant’s attorney is entitled to fees for legal services.

Heather Taylor, a Vocational Rehabilitation Consultant, provided a

Vocational Rehabilitation Initial Evaluation for the claimant on February 28,

2018. Heather Taylor met the claimant and identified a large number of

potential job openings in the claimant’s professional field as an electrician.

Ms. Taylor stated, “Mr. Jaynes is an excellent candidate for returning to the

workforce in his same occupation, as an electrician, as he was performing

at the time of his injury and can expect to earn comparable or higher

earnings as he was at the time of his injury….If Mr. Jaynes would like

assistance with returning to the workforce, I would be available to assist him

with the job search process to entail resume update, interview preparation,

and job market research to identify jobs he could apply for.”

Dr. Knox corresponded with Shy Cox on February 29, 2018:

JAYNES - G703512 12

I recently had the opportunity to review the Independent Medical Evaluation performed on 12/06/17 by Dr. Michael Morse concerning Mr. Gary Jaynes. As you know, we had defined problems with Mr. Jaynes concerning his clinical syndrome and we felt there was no evidence of problems related to his lumbar spine. His lumbar spine MRI scan had been performed and demonstrated findings consistent with degenerative changes and demonstrated no evidence of pathology that would be consistent with Mr. Jaynes’ complaints. It ultimately was felt that he was suffering the effects of a femoral neuropathy that I had felt was consistent with the electrical studies. Having reviewed Dr. Morse’s report, I would defer to his expertise concerning his recommendations as he deals with this much more than I do. As Dr. Morse has more experience with this type of injury, I would certainly defer to his expertise concerning his recommendations and would favor that these be followed by his workers’ compensation carrier rather than my previous recommendation detailed in correspondence prior….

A hearing was held on March 27, 2018. The claimant testified that he

suffered from burning in his left leg as well as numbness from his knee to

his groin. The claimant testified that he also suffered from chronic back pain

as a result of his compensable injury. The claimant testified that he believed

he was physically unable to return to work. Upon examination by the

administrative law judge, the claimant testified that he felt a “pop” in his left

hip at the time of the March 8, 2017 compensable injury.

The administrative law judge testified that he too had been suffering

from chronic hip pain which was similar to the claimant’s reported

symptoms. The administrative law judge determined sua sponte that the

JAYNES - G703512 13

claimant should undergo an Independent Medical Evaluation to be

performed by Dr. C. Lowry Barnes. Neither party objected to the

administrative law judge’s recommendation of another medical evaluation.

Heather Taylor testified regarding her efforts on behalf of the claimant as a

Vocational Rehabilitation Consultant. Ms. Taylor testified that the claimant

was physically able to return to at least restricted work. Following Heather

Taylor’s testimony, the administrative law judge recessed the hearing so

that Dr. Barnes could examine the claimant.

Dr. Charles Lowry Barnes reported on May 23, 2018:

Gary D. Jaynes is a 55 y.o. male who is here for an independent medical evaluation….He reports that he was working for a temporary agency when he suffered an injury on March 8, 2017. He works as an electrician. He was standing in a ditch and passing pipe over his head. When he finished he could not get out of the ditch because he had sunk so deeply into the mud. He could not move either leg. His coworkers dug around his boots so that he could get out of the ditch…. He did have Electrodiagnostic studies performed by Dr. Mild (sic) Johnson in the (sic) suggested radiculopathy versus femoral neuropathy. He also had MRIs of his hip which were unremarkable as well as MRI of the lumbar spine which suggested degenerative changes with some central disc protrusions but also degenerative changes affecting his lower lumbar spine. No acute disc herniation was noted…. A previous IME is included in the records. This was by Dr. Steve Cathey. He found no objective problems and recommended patient return to work and that there was no impairment….

JAYNES - G703512 14

Radiographic Interpretation: AP pelvis and lateral left hip showed no acute bony abnormality. AP and lateral lumbar spine Showed no significant spondylolisthesis. Assessment: Patient has long standing pain Which he relates to his on-the-job injury of March 8, 2017. Again, this injury was from getting stuck in the mud in the ditch. He did not fall. He is extremely frustrated, as is his sister, because he feels as if no one has tried to help him and he has just been bounced around between doctors…. Plan: Patient did have a functional capacity evaluation on October 10, 2017. This suggested that he was an unreliable participant. Despite this, he did have an abnormal electrodiagnostic study. That study was on September 20, 2017. It should be repeated. If that study is still abnormal, the MRI of his lumbar spine should be repeated also. It was performed on June 29, 2017. Patient needs to be on a weight loss program. He also needs to be on a walking program. If his repeat EMG is normal, no objective finding of a significant neurological diagnosis has been documented. He will have reached maximum medical improvement. If he has abnormal findings on his EMG and MRI, he should be re-evaluated by a spinal surgeon. This has not been shared with the patient at this time. It is shared with those requesting the IME, and they can share with the patient.

Dr. Neil M. Masangkay provided an Electromyography/Nerve

Conduction Study Report on June 6, 2018:

History: He is a 55-year-old man being evaluated for a possible radiculopathy. Symptoms began in March 2017 and have consisted of left-sided pain and numbness of his thigh which limits his range of motion. Neurologic Examination: Strength testing was limited by effort when testing strength in the left thigh. In that context, his left proximal leg strength was at least 2/5. Strength testing was otherwise 5/5 in both legs. He reported reduced sensation of the left thigh.

JAYNES - G703512 15

Nerve Conduction Studies: The left sural sensory response was normal. The left peroneal motor response was normal. The left tibial motor response was normal. Needle Electromyography: Needle EMG of select muscles of the left leg covered L2-S1 myotomes. Reduced firing rates were seen when the patient was asked to fully contract the muscles of his left thigh. A mild excess of polyphasic units was seen in a single L2/3/4-innervated muscle. All other muscles studied were normal. No abnormal spontaneous activity (fibrillation potentials, positive sharp waves) was seen. All other muscles studied were normal. Impression: 1. There was no convincing electrophysiologic evidence of a lumbosacral radiculopathy, focal neuropathy, or other general neuromuscular disorder in the left lower extremity at this time. 2. This was a somewhat limited study due to the reduced firing rates seen in the left thigh. In this clinical context, this may have been the result of reduced effort.

The claimant followed up with Dr. Barnes on July 18, 2018:

He returns today for re-evaluation after having his EMG. Exam is unchanged. EMG performed at University of Arkansas for Medical Sciences on June 6 was interpreted as no convincing evidence of lumbosacral radiculopathy focal neuropathy or other general neuromuscular disorder in the left lower extremity somewhat limited study due to reduce (sic) firing rates seen in the left thigh in his clinical context may have been the result of reduced effort according to the neurologist. This is a significant improvement from a neural (sic) logic exam performed on September 20, 2017 by Dr. Miles Johnson in Fe Advil (sic). This suggested an incomplete left femoral neuropathy versus a possible lumbar radiculopathy at the L2-L4 levels…. Assessment: No objective findings of neurologic injury at this time. Plan: Patient is extremely upset. His sister is with him again and she is upset. They feel as if they have had the run around

JAYNES - G703512 16

because no one can help them. They understand from me today that a number of tests have been ordered and nobody is able to identify a problem which is consistent with his complaints. Consistent with previous independent medical evaluation, he has reached maximal medical improvement at this time. He has no permanent impairment. He can return to work based upon his functional capacity evaluation which is in his medical record….

Another hearing was held on September 5, 2018. At that time, the

parties’ colloquy indicated that the claimant had presented on his own to

Dr. Schlesinger in August 2018. The respondents apparently contended

that any treatment provided by Dr. Schlesinger was unauthorized, despite

the absence in the record of any evidence demonstrating that the claimant

received a copy of the change of physician rules. See St. Joseph’s Mercy

Med. Ctr. v. Redmond, 2012 Ark. App. 7, 388 S.W.3d 45 (Ark. App. 2012);

Stephenson v. Tyson Foods, Inc., 70 Ark. App. 265, 19 S.W.3d 36 (2000).

Yet the administrative law judge did not allow the claimant to submit Dr.

Schlesinger’s proffered reports into the record. Additionally, the

administrative law judge would not allow the respondents to submit

apparently at least one follow-up report of Dr. Barnes. Neither party appeals

the administrative law judge’s rulings regarding admission of evidence. The

administrative law judge filed an opinion on October 31, 2018 and found

that the claimant did not prove he was entitled to permanent anatomical

JAYNES - G703512 17

impairment, wage-loss disability, or permanent total disability benefits. The

claimant appeals to the Full Commission.

II. ADJUDICATION

A. Permanent Impairment

Permanent impairment is any 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). The Commission has adopted the

American Medical Association Guides to the Evaluation of Permanent

Impairment (4th ed. 1993) to be used in assessing anatomical impairment.

See Commission Rule 34; Ark. Code Ann. §11-9-522(g) (Repl. 2012). It is

the Commission’s duty, using the Guides, to determine whether the

claimant has proved he is entitled to a permanent anatomical impairment.

Polk County v. Jones, 74 Ark. App. 159, 47 S.W.3d 904 (2001).

Any determination of the existence or extent of physical impairment

shall be supported by objective and measurable physical findings. Ark.

Code Ann. §11-9-704(c) (1) (Repl. 2012). Objective findings are those

findings which cannot come under the voluntary control of the patient. Ark.

Code Ann. §11-9-102(16) (A) (i) (Repl. 2012). Although it is true that the

legislature has required medical evidence supported by objective findings to

establish a compensable injury, it does not follow that such evidence is

required to establish each and every element of compensability. Stephens

JAYNES - G703512 18

Truck Lines v. Millican, 58 Ark. App. 275, 950 S.W.2d 472 (1997). All that is

required is that the medical evidence be supported by objective medical

findings. Singleton v. City of Pine Bluff, 97 Ark. App. 59, 244 S.W.3d 709

(2006). Medical opinions addressing permanent impairment must be stated

within a reasonable degree of medical certainty. Ark. Code Ann. §11-9-

102(16) (B) (Repl. 2012).

Permanent benefits shall be awarded only upon a determination that

the compensable injury was the major cause of the disability or impairment.

Ark. Code Ann. §11-9-102(F) (ii) (a) (Repl. 2012). “Major cause” means

“more than fifty percent (50%) of the cause,” and a finding of major cause

shall be established according to the preponderance of the evidence. Ark.

Code Ann. §11-9-102(14) (Repl. 2012). Preponderance of the evidence

means the evidence having greater weight or convincing force. Metropolitan

Nat’l Bank v. La Sher Oil Co., 81 Ark. App. 269, 101 S.W.3d 252 (2003).

An administrative law judge found in the present matter, “1. The

claimant has failed to meet his burden of proof in demonstrating he has

sustained any permanent anatomical impairment as a result of his

compensable lower back and left leg injuries of March 8, 2017. The

preponderance of the medical and other evidence; the updated June 6,

2018 EMG study – which was ‘normal’ and showed ‘significant

improvement’ from the earlier September 2017 EMG; Dr. Barnes’s final IME

JAYNES - G703512 19

report dated July 18, 2018, as well as the simple passage of time, all prove

the claimant’s injuries were temporary in nature, and have resulted in no

objective medical evidence of any permanent impairment.”

The Full Commission does not affirm this finding. The parties

stipulated that the claimant “sustained compensable injuries to his back and

leg” on March 8, 2017. We must strictly construe the provisions of the

Workers’ Compensation Act. See Ark. Code Ann. §11-9-704(c) (3) (Repl.

2012); Clardy v. Medi-Homes LTC Servs., LLC, 75 Ark. App. 156, 55

S.W.3d 791 (2001). Pursuant to strictly construing the provisions of Act 796

of 1993, the Full Commission is unaware of any statutory authority or

controlling appellate precedent which provides for a denial of benefits

based on a finding that a compensable injury was “temporary in nature.”

We note that the Arkansas Court of Appeals has described the “temporary

aggravation of a pre-existing injury” concept to be a “new, unfounded

theory” that is “rather novel.” See Johnson v. Pat Salmon & Sons, Inc.,

2011 Ark. App. 48 (Ark. App., 2011).

Nevertheless, the Full Commission has the duty to decide the case

de novo and we are not bound by the administrative law judge’s

characterization of evidence. Tyson Foods, Inc. v. Watkins, 37 Ark. App.

230, 792 S.W.3d 348 (1990). The parties in the present matter stipulated

that the claimant sustained a compensable injury to his back and left leg on

JAYNES - G703512 20

March 8, 2017. The claimant testified that, while performing employment

services for the respondents, his left leg became submerged in mud. “It had

to be literally dug out,” the claimant testified. Following the stipulated

compensable injury to the claimant’s back and left leg, an MRI of the

claimant’s lumbar spine on June 29, 2017 showed protrusions at L4-5 and

L5-S1. Dr. Cathey examined the claimant on July 17, 2017 and opined that

the claimant had reached maximum medical improvement. Dr. Cathey

opined that the claimant had sustained no permanent anatomical

impairment. Dr. Knox examined the claimant on September 5, 2017 and

indicated that he agreed with Dr. Cathey that the claimant had sustained no

permanent anatomical impairment with regard to the claimant’s lumbar

spine.

Nevertheless, Dr. Knox opined that the claimant had sustained “a

nerve injury over his groin area, and possibly even related to a lateral

femoral cutaneous nerve of the thigh.” Dr. Knox referred the claimant to

Dr. Johnson for electrodiagnostic testing. Dr. Johnson correctly stated that

the claimant had sustained a compensable injury to his left leg – “[H]is left

lower extremity was stuck in some mud and he forcefully tried to jerk it out.

Since that time he has had pain in the left thigh when he ambulates. He

notes constant numbness in the medial anterior thigh as well.” Dr. Johnson

reported, “EMG examination of the left lower extremity was significant for

JAYNES - G703512 21

abnormal spontaneous potentials in the vastus medialis, vastus lateralis,

and rectus femoris.” Dr. Johnson assessed “Studies consistent with an

incomplete left femoral neuropathy versus possible lumbar radiculopathy,

approximate L2-L4 levels.”

The evidence demonstrates that the “abnormal spontaneous

potentials” in the claimant’s left lower extremity, as reported by Dr. Johnson,

were patent objective medical findings which were not within the claimant’s

voluntary control. Dr. Knox opined on October 24, 2017 that the claimant

“has reached that point of maximum medical improvement.” Dr. Knox

assigned the claimant an 11% whole-body impairment rating. Dr. Knox

relied on the authorized 4th Edition of the Guides, Table 68, page 3/89. Dr.

Knox assigned an 11% rating based at least in part on a “Femoral” nerve

injury to the claimant’s left lower extremity, which rating was wholly

consistent with the medical evidence of record.

The respondents subsequently avoided Dr. Johnson and arranged

for an additional evaluation with Dr. Morse. Despite the parties’ stipulation

that the claimant sustained a compensable injury to his left lower extremity,

Dr. Morse opined on December 6, 2017 that the claimant’s injury was “not

consistent with a femoral neuropathy.” Dr. Morse opined without supporting

authority that there was “no provision for giving the patient impairment

based upon EMG abnormalities.” Dr. Morse declared that the claimant had

JAYNES - G703512 22

not sustained any permanent anatomical impairment. After the

administrative law judge’s referral to Dr. Barnes for yet another medical

evaluation, Dr. Barnes referred the claimant to Dr. Masangkay. Dr.

Masangkay performed another electrodiagnostic test and reported “reduced

firing rates” in the claimant’s thigh which “may have been the result of

reduced effort.” Dr. Barnes then examined the claimant on July 18, 2018

and assessed “No objective findings of neurologic injury at this time.”

It is the Commission’s duty to translate the evidence of record into

findings of fact. Gencorp Polymer Prods. v. Landers, 36 Ark. App. 190, 820

S.W.2d 475 (1991). It is also within the Commission’s province to weigh all

of the medical evidence and to determine what is most credible. Minnesota

Mining & Mfg. v. Baker, 337 Ark. 94, 989 S.W.2d 151 (1999). In the present

matter, the Full Commission finds that Dr. Johnson’s conclusions are

supported by the record and are entitled to more evidentiary weight than the

opinions of Dr. Morse, Dr. Barnes, or Dr. Masangkay. Dr. Johnson

performed expert electrodiagnostic testing on September 20, 2017 and

concluded, “EMG examination of the left lower extremity was significant for

abnormal spontaneous potentials in the vastus medialis, vastus lateralis,

and rectus femoris.” As the Full Commission stated supra, Dr. Johnson’s

findings are credible and are wholly consistent with the medical evidence

following the stipulated compensable injury to the claimant’s left leg.

JAYNES - G703512 23

Dr. Knox opined on October 24, 2017 that the claimant had reached

maximum medical improvement. Dr. Knox assigned the claimant an 11%

permanent anatomical impairment rating. The Full Commission finds that

the 11% impairment rating assessed by Dr. Knox is supported by the 4th

Edition of the Guides, Table 68, page 3/89. The probative evidence of

record corroborates Dr. Johnson’s determination that the claimant had

sustained a femoral neuropathy, which determination is consistent with the

stipulated compensable injury to the claimant’s left leg. The Full

Commission finds that an 11% permanent anatomical impairment rating is

supported by objective and measurable physical findings, including Dr.

Johnson’s report of abnormal electrodiagnostic testing in the claimant’s left

leg following the stipulated compensable injury to the claimant’s left leg. We

find that the March 8, 2017 compensable injury was the major cause of the

claimant’s 11% permanent anatomical impairment.

B. Wage-Loss Disability

When a claimant has sustained a permanent impairment rating to the

body as a whole, the Commission is authorized to increase the disability

rating based on wage-loss factors. Ark. Code Ann. §11-9-522(b) (1) (Repl.

2012); Redd v. Blytheville Sch. Dist. No. 5, 2014 Ark. App. 575, 446 S.W.3d

643. The Commission is charged with the duty of determining disability

based upon a consideration of medical evidence and other matters affecting

JAYNES - G703512 24

wage loss, such as the claimant’s age, education, and work experience.

Emerson Elec. v. Gaston, 75 Ark. App. 232, 58 S.W.3d 848 (2001).

In the present matter, the claimant is age 56 and is a high school

graduate. The claimant testified that he began working as an electrician in

1983 and became a certified Master Electrician in 1997. The claimant

testified that his work was difficult and occasionally required heavy manual

labor. The parties stipulated that the claimant sustained compensable

injuries to his back and leg on March 8, 2017 in an incident where the

claimant’s left leg became entrenched in mud. Dr. Varela released the

claimant to return to work no later than June 12, 2017 but the claimant has

made no attempt since that time to return to gainful employment. Dr. Knox

determined on October 24, 2017 that the claimant had reached maximum

medical improvement. Dr. Knox assigned the claimant an 11% permanent

anatomical impairment rating, which rating the Full Commission has

awarded the claimant in accordance with the relevant provisions of Act 796

of 1993.

The claimant participated in a Functional Capacity Evaluation on

October 10, 2017 but did not put forth reliable effort. The functional capacity

evaluator opined that the claimant could return to at least “Sedentary”

employment. Heather Taylor, a skilled and competent Vocational

Rehabilitation Consultant, met with the claimant on February 28, 2018 and

JAYNES - G703512 25

identified a rather large number of potential job openings within the

claimant’s permanent restrictions. The evidence does not demonstrate that

the claimant followed up on any of the job leads identified for him by

Heather Taylor. The record shows that the claimant suffers from chronic

pain in his back, numbness in his left leg, and an 11% permanent

anatomical impairment rating as a result of his March 8, 2017 compensable

injury. However, the evidence also demonstrates that the claimant is not

legitimately interested in returning to gainful employment within his

permanent physical restrictions. The Commission can consider the

claimant’s lack of interest in returning to work or negative attitude in

assessing the claimant’s functional disability. Weyerhaeuser Co. v.

McGinnis, 37 Ark. App. 91, 824 S.W.2d 406 (1992). The Full Commission

finds, based on the claimant’s compensable injury, his permanent

impairment as a result of same, and his lack of interest in returning to work,

that the claimant has sustained wage-loss disability in the amount of 10%.

After reviewing the entire record de novo, the Full Commission finds

that the claimant proved by a preponderance of the evidence that he

sustained permanent anatomical impairment in the amount of 11%. The

claimant proved that he sustained wage-loss disability in the amount of

10%. The claimant does not contend at this time that he is permanently

totally disabled. The Full Commission finds that the March 8, 2017

JAYNES - G703512 26

compensable injury was the major cause of the claimant’s 11% permanent

anatomical impairment and 10% wage-loss disability. The claimant’s

attorney is entitled to fees for legal services in accordance with Ark. Code

Ann. §11-9-715(a) (Repl. 2012). For prevailing on appeal, the claimant’s

attorney is entitled to an additional fee of five hundred dollars ($500),

pursuant to Ark. Code Ann. §11-9-715(b) (Repl. 2012).

IT IS SO ORDERED.

______________________________________ SCOTTY DALE DOUTHIT, Chairman ______________________________________ M. SCOTT WILLHITE, Commissioner Commissioner Palmer concurs in part and dissents in part.

DISSENTING OPINION

A clock is the instrument needed to resolve the issue presented by

this case. Because the majority appears to have used a scale, I respectfully

dissent.

This case does not involve a credibility contest between competing

experts. In fact, every doctor who gave an opinion on the matter,

determined that Claimant’s injury was not permanent. Dr. Barnes, Dr.

Masangkay, Dr. Cathey, and Dr. Morse all agreed that Claimant had no

permanent impairment. Dr. Johnson, who reported that Claimant had an

JAYNES - G703512 27

injury (which was stipulated to by the parties), was silent on whether

Claimant’s femoral-nerve injury was permanent. And, although Dr. Knox

did, at one point, “believe it would be reasonable for him to qualify for a

10% permanent partial disability,” he later withdrew that opinion and

deferred to Dr. Morse’s opinion that the injury was not permanent.

Because there are no competing opinions, resolution of this case

does not require a scale and the weighing of credibility. Nevertheless, the

majority writes: “Dr. Johnson’s conclusions are supported by the record and

are entitled to more evidentiary weight than the opinions of Dr. Morse, Dr.

Barnes, or Dr. Masangkay.” (emphasis added).

The MRI of Claimant’s left hip from June 14, 2017 showed minimal

fluid and mild degenerative arthrosis but no acute inflammation. In other

words, Claimant’s left hip suffered from normal results of aging and

everyday wear and tear – but not a specific injury. The MRI of Claimant’s

lumbar spine (lower back) from June 29, 2017 showed some compression

of the nerve root between L4-L5 vertebrae.

Dr. Steven Cathey conducted an independent medical evaluation of

Claimant. He concluded that Claimant was not entitled to an impairment

rating from a neurosurgical standpoint because “there are no objective

findings either clinically or radiographically that can be attributed to the

event.” As for the results of the June 2017 MRIs, Dr. Cathey notes that,

JAYNES - G703512 28

although there are multilevel degenerative changes, neither he nor the

radiologist identified an acute lumbar-disc herniation that can be attributed

to the March 8, 2017 incident.

Dr. Luke Knox reviewed the June 2017 MRI of Claimant’s lower back

and wrote, “I could discern no evidence of significant lumbar abnormalities

that would be causing his difficulties.” Dr. Knox also wrote, “I agree

wholeheartedly with Dr. Cathey. I do not believe this is related to

[Claimant’s] lumbar spine, but rather a nerve injury over his groin area, and

possibly even related to a lateral femoral cutaneous nerve of the thigh.

At this point, the objective medical findings make clear that the

March 8, 2017 incident did not cause any damage to Claimant’s back.

Dr. Knox suggested that Claimant’s lateral femoral cutaneous nerve

(a nerve in the thigh) might be injured and recommended this be

investigated further through electromyography (EMG).

Claimant had an EMG on September 20, 2017. Dr. Miles Johnson

noted that the EMG of Claimant’s “left lower extremity was significant for

abnormal spontaneous potentials in the vastus medialis, vastus lateralis,

and rectus femoris.” In other words, the EMG showed that the nerves that

control three of Claimant’s quadriceps muscles might have been damaged,

but Dr. Johnson did not suggest that the damage was permanent.

JAYNES - G703512 29

Nevertheless, Dr. Knox noted that he “believe[d] it would be

reasonable for [Claimant] to qualify for a 10% permanent partial disability

for a partial motor loss” and “diminished sensation for 1%.”

Dr. Michael W. Morse examined Claimant on December 6, 2017, and

noted that “there is no provision for giving [Claimant] impairment based

upon EMG abnormalities.” Accordingly, Dr. Morse determined that there is

no permanent impairment.

Following Dr. Morse’s determination that Claimant did not have a

permanent impairment, Dr. Knox wrote the following:

Having reviewed Dr. Morse’s report, I would defer to his expertise concerning his recommendations as he deals with this much more than I do. As Dr. Morse has more experience with this type of injury, I would certainly defer to his expertise concerning his recommendations and would favor that these be followed by his workers’ compensation carrier rather than my previous recommendation detailed in correspondence prior. . . . At the hearing in March 2018, the administrative law judge sent

Claimant to Dr. Barnes for another independent medical evaluation. Dr.

Barnes noted the abnormal EMG from September 2017 and recommended

that another EMG be done. “If his repeat EMG is normal, no objective

finding of a significant neurological diagnosis has been documented.”

Dr. Neil Masangkay performed a follow-up EMG on June 6, 2018,

and reported “[n]o abnormal spontaneous activity (fibrillation potentials,

positive sharp waves) was seen.” Dr. Barnes reviewed the most-recent

JAYNES - G703512 30

EMG, the results of which were normal, and determined that Claimant “has

reached maximal medical improvement at this time. He has no permanent

impairment.”

Dr. Barnes’ findings are consistent with Dr. Knox’s assurance given

to Claimant after the September 2017 EMG, when Dr. Knox “assured him

that his femoral nerve injury will continue to improve and that he could

probably pursue any job requirements so necessary.”

The administrative law judge, using the correct instrument to gauge

the issue in this case, found:

the updated June 6, 2018 EMG study – which was ‘normal’ and ‘showed significant improvement’ from the earlier September 2017 EMG . . . as well as the simple passage of time, all prove the claimant’s injuries were temporary in nature, and have resulted in no objective medical evidence of any permanent impairment. In September 2017, Claimant’s EMG showed nerve damage. In June

2018, a second EMG showed the damage had healed. Every single doctor

who has given an opinion on whether the injury was permanent has agreed

that Claimant does not have a permanent injury. All of his physicians have

released him to return to work with no restrictions. Accordingly, I

respectfully dissent.

______________________________________ CHRISTOPHER L. PALMER, Commissioner