Emergency Ambulance Serv., Inc. v. Burnett

• Decision Date: 06 May 2015
• Docket Number: No. CV–14–925,CV–14–925
• Citation: 2015 Ark. App. 288,462 S.W.3d 369
• Parties: Emergency Ambulance Service, Inc., and AIG Claims, Inc., Appellants, v. Carla Burnett, Appellee.
• Court: Arkansas Court of Appeals

2015 Ark. App. 288

462 S.W.3d 369

Emergency Ambulance Service, Inc., and AIG Claims, Inc., Appellants

v.Carla Burnett, Appellee.

No. CV–14–925

Court of Appeals of Arkansas, DIVISION III.

Opinion Delivered May 6, 2015

Worley, Wood & Parrish, P.A., by: Melissa Wood, for appellant.

C. Michael White, for appellee.

Opinion

ROBERT J. GLADWIN, Chief Judge

Emergency Ambulance Service, Inc., and AIG Claims, Inc., appeal the Arkansas Workers' Compensation Commission's (Commission) September 15, 2014 opinion finding that appellee Carla Burnett was entitled to additional medical treatment but finding her claims for permanent total-disability benefits and wage loss and appellant's entitlement to credit for overpayment of temporary total-disability benefits premature and not ripe for determination.¹ Appellants contend that substantial evidence does not support the Commission's decision to award additional treatment and that the Commission erred when it reserved issues on behalf of appellee. We affirm.

At the hearing before the ALJ, appellee testified that she was a sixty-year-old high school graduate. After high school, she attended two years of college studying physical education, and completed a two-year vo-tech program in one year, obtaining a certificate in computerized accounting. Appellee then worked in a CPA's office performing computer work until her husband asked her to stop working. She then went to EMT school in 1997 and obtained a certificate to work as an emergency medical technician (EMT). She began working as an EMT in 1997–98 at DeWitt Hospital. Appellee had been working for Emergency Ambulance Services, Inc., for almost sixteen years which, on August 6, 2011, when she suffered a compensable low-back injury while unloading a patient by stretcher from an ambulance.

Appellee testified that she had prior back problems as early as 1992. She explained that her symptoms after the August 6, 2011 incident were different than the ones she had before the incident. She said that the incident caused shaking, trembling, and the inability to lift. She testified that her prior back problems had never prevented her from working. She had a back injury in April 2002 and was treated by Dr. Barry Baskin but was not ever off work due to that injury. After the injury in August 2011, she could no longer mow the yard. She explained that it initially affected one side of her body—the outside of the right side of her leg—but that it now affects both sides of her leg. She testified that she cannot lift or squat; requires help getting dressed and getting in and out of the shower at times; can no longer get in the bathtub; is limited on how long she can stand to cook; can lift a gallon of milk or an iron skillet at the most; and is able to go grocery shopping but cannot carry the groceries. She said that her husband helps with these issues. Appellee testified that she currently had problems in her legs, low back, and bottoms of her feet. She explained that she had no problems in those areas prior to the August 6, 2011 injury. She said that she had previously undergone a nerve-conduction test, but could not recall the date.

Appellee said that she had not worked since August 6, 2011. She testified that she was only able to sit comfortably for approximately thirty minutes, she could stand for five-to-ten minutes, and she was no longer able to garden or play with her grandchildren. She described a good day as going outside to swing in the yard. She claims that on a bad day she could not get up at all because she had no feeling in her legs.

She testified that she could not work at a cleaners because she could not stand for extended periods of time. She testified that she could not work at the desk job for a CPA because she was not able to sit for extended periods of time. She could not work as an EMT because she could not lift, push, or pull. She was able to drive but was unable to ride in a car for an extended period of time.

On cross-examination, appellee testified that she had let her EMT certificates lapse, but not her CPR certification. She said that she was also injured in April 2002 when lifting a pregnant woman who weighed over 400 pounds. She explained that she injured her low back and was initially seen by a company doctor, who ordered an MRI and referred her to Dr. Reza Shahim and Dr. Baskin. Dr. Baskin ordered a TENS unit and prescribed muscle relaxers and pain pills. She had muscle spasms and numbness in her right leg. She testified that she had recovered one hundred percent and had no continuing symptoms or complaints from that injury. Appellee testified that she began drawing social security disability benefits of $980 per month due to her back problems and depression in October 2013.

The parties stipulated that Randy Burnett's testimony would be that he was appellee's spouse and had known her well several years before August 6, 2011. He had the opportunity to observe her during that period of time and did not see her demonstrate any limitations related to physical problems at that time. Since August 6, 2011, he had seen her demonstrate the limitations consistent with her testimony.

Medical records reflect that appellee sought treatment with Dr. Stan Burleson with complaints of persistent back pain after twisting on October 19, 1992. He noted that she had a pop and was experiencing muscle spasms. He also noted that she had been seen by a chiropractor that morning and had undergone x-rays. She returned to Dr. Burleson on October 26, 2001, with complaints of severe lower-back pain and numbness in her legs.

On September 19, 2002, appellee was seen by Dr. Baskin after a work injury on April 6, 2002. She complained of persistent numbness down her right leg and pain in her low back. She underwent an MRI on September 28, 2002, which revealed “leftward eccentric diffuse annular disc bulging at L4–5 with a small left posterclateral annular fissure and no neural impingement. Mild degenerative changes in the facets bilaterally at L4–5 and L5–S1.” She returned for a follow-up with Dr. Baskin on October 10, 2002, and reported that the therapist had done only a few exercises with her and was less than adequate. She also reported that Bextra had not helped and that she had also taken Darvocet. He noted that she had an annular tear at L4–5 and discogenic pain syndrome. Dr. Baskin referred her for a steroid injection, which she had on October 18, 2002. She returned to Dr. Baskin on November 5, 2002, and he noted that the injection had been beneficial for a few days but the pain had come back and was severe. She admitted to severe depression. He administered an injection and prescribed Zoloft, Darvocet, and Xanax. He noted that her tear and bulge were on the left side but that her pain was in the right low back and leg.

Appellee underwent another MRI on March 6, 2003, which revealed

mild degenerative disc disease with asymmetric broad based bulge to the left L4–5 level as before. Associated posterior lateral annular tear to the left is seen. The neural foramen and central canal are grossly patent. Mild degenerative disc disease at L5–S1 level without significant central canal stenosis or foraminal narrowing as above.

Appellee returned to Dr. Baskin on June 19, 2003, and reported that she was worse than she had been in November 2002. She continued to complain of low-back pain, right-hip pain, and right-leg numbness. She also reported that there had been several occasions over the last few months where her leg had given way. Dr. Baskin referred her to Dr. Shahim.

Appellee was evaluated by Dr. Shahim on July 28, 2003. She reported low-back pain, numbness in her right leg to her foot, and pain in her entire right leg. He referred her for a CT lumbar myelogram. On October 7, 2003, she returned to Dr. Shahim, who reviewed the MRI and myelogram and noted that the myelogram revealed no evidence of nerve-root compression or canal stenosis. He noted that the MRI revealed an annular tear but no disc herniation. Dr. Shahim opined that he did not think appellee was a surgical candidate and the test results did not explain the leg numbness. He noted that the annular tear could cause back and hip pain and recommended pain management. Dr. Shahim noted that appellee did not want to be evaluated by pain management at that time.

Appellee returned to Dr. Burleson on September 22, 2004, with complaints of persistent numbness and pain in her leg and foot. She underwent another MRI on October 4, 2004, which revealed “no significant degenerative disc disease. There is minimal focal subligamentous disk protrusion at L4–5. There is no evidence of central canal or foraminal stenosis.”

Appellee underwent another MRI on January 6, 2006, at Stuttgart Regional as a result of complaints of back pain due to a fall. The January 2006 MRI revealed “[m]ild disc desiccation noted at L4/5. No evidence of traumatic injury. No evidence of significant disc pathology.”

Appellee underwent a nerve-conduction study on June 16, 2009. At that time, she reported that she had fallen out of an ambulance and landed on her back in 2000. On October 12, 2009, she was treated by Dr. Richard Wilson for problems of anxiety due to family issues and chronic back pain. She was prescribed Prozac and Ultram.

Appellant returned to Dr. Wilson on January 28, 2011, with complaints of depression and chronic back pain. He prescribed Effexor, Flexeril, Klonopin, and Ultram. He had a long discussion with her about bipolar disorder.

Appellee began treating with a nurse practitioner, Suzette Boyd, on March 17, 2011, with complaints of lower leg pain on both the left and right sides with aching and tingling in her legs. She returned to Ms. Boyd on April 4, 2011, with complaints of chronic back pain that was moderately limiting her activities. She was given a Toradol injection.

On August 19, 2011, appellee underwent another MRI due to a “lifting injury,” which revealed “[n]o acute abnormalities visualized.” On September 12, 2011, Dr....