Rodriguez v. Superior Indus. & Cent. Adjustment Co.

2016 Ark. App. 235

491 S.W.3d 146

Fabio Rodriguez, Appellant

v.Superior Industries and Central Adjustment Company, Appellees

No. CV–15–977

Court of Appeals of Arkansas, DIVISION IV.

Opinion Delivered: April 27, 2016

Tolley & Brooks, P.A., Fayetteville, by: Evelyn E. Brooks, for appellant.

Bassett Law Firm LLP, Fayetteville, by: Curtis L. Nebben, for appellees.

WAYMOND M. BROWN, Judge

Appellant appeals from the August 27, 2015 opinion of the Arkansas Workers' Compensation Commission (Commission) affirming the opinion of the administrative law judge (ALJ) that appellant failed to prove his entitlement to additional medical treatment for a compensable low-back injury sustained on January 5, 2013. On appeal, appellant's sole argument is that substantial evidence does not support the Commission's decision that appellant failed to prove that he was entitled to additional medical treatment. We affirm.

Appellant suffered a compensable low-back injury on January 5, 2013.¹ On January 7, 2013, he received treatment from Dr. Konstantin Berestnev, who treated appellant with a shot of Depo–Medrol and a prescription for Nalfon. Dr. Berestnev further recommended stretching exercises for appellant and returned him to work with a lifting restriction of no more than forty pounds. His assessment of appellant found “no acute fractures or dislocations” in appellant's lumbar spine, though lumbar scoliosis was present.

Dr. Berestnev saw appellant again on January 14, 2013.² He gave appellant another shot of Depo–Medrol and recommended physical therapy. He noted that appellant had stated that the Nalfon “did not help.”

Following a January 28, 2013 examination, Dr. Berestnev reported that appellant said “the pain in his lower back is getting [worse]. Pain radiating down both legs.” He assessed appellant as having “back pain with symptoms of nonorganic back pain.” He returned appellant to work with a lifting restriction of no more than twenty pounds. Appellant's prescription for Nalfon was continued and physical therapy was ordered; a prescription for Norco was added.

In his January 29, 2013 report following appellant's first physical therapy treatment on the same date, appellant's physical therapist assessed appellant as demonstrating signs “consistent with lumbar strain with radiculopathy and a possible SI joint dysfunction.” He opined that appellant “would benefit” from physical therapy. The physical therapist's notes over the next four consecutive sessions stated that appellant respectively “tolerated the treatment fairly well[,]” “[was] not progressing well with his exercises [,]” “tolerates [certain] exercises moderately[,]” and “[was] making very slow progress.”

In his February 11, 2013 report, appellant's physical therapist stated that he had “made little progress” with appellant. After his visit with the physical therapist, appellant had an examination with Dr. Berestnev on the same date. Dr. Berestnev reported appellant's statement that he still had pain and that his pain was “not any better” after completing six physical therapy sessions. Dr. Berestnev stated that appellant's “pain is out of proportion to the clinical findings.” His notes go on to state that

The patient has what appears to be nonorganic back pain and since he has not improved with physical therapy, we are going to order an MRI of his lower back to look for an organic cause of his back pain. Otherwise, I am going to keep him on medication which, according to the patient helps him.

Dr. Berestnev ordered an MRI, which was performed on February 22, 2013, and revealed the following:

1. MILD DEGENERATIVE CHANGES INVOLVING THE LUMBAR SPINE WITH DISC HERNIATIONS INVOLVING THE L3–4 AND L5–S1 LEVEL.

2. MODERATE CENTRAL CANAL STENOSIS INVOLVING THE L5–S1 LEVEL PREDOMINATELY SECONDARY TO PREVIOUSLY NOTED DISC HERNIATION.

He continued treating appellant with prescriptions and physical therapy.

On February 28, 2013, Dr. Berestnev reported that appellant said he still had pain in his lower back and a “numbness and tingling sensation down [his] right leg.” He ordered the opinion of a neurosurgeon. Claimant was terminated at an undefined time for a sexual-harassment matter unrelated to his compensable injury.³

Despite his termination, his medical treatment continued at appellees' expense and appellant was seen by a neurosurgeon's assistant on April 2, 2013. She ordered a repeat MRI due to the poor quality of a prior MRI, noting that she would “offer an opinion regarding surgery vs. continued conservative care” after receipt of the new MRI. The impression from appellant's April 5, 2013 MRI was:

1. L3–4 CENTRAL ANNULAR TEAR WITH MODERATE DISC PROTRUSION RESULTING IN MODERATE CENTRAL CANAL STENOSIS.

2. L5–S1 CENTRAL ANNULAR TEAR WITH MODERATE DISC PROTRUSION BUT NO HIGH–GRADE CENTRAL CANAL STENOSIS.

3. SEVERE RIGHT NEUROFORAMINAL NARROWING WITH IMPINGEMENT OF THE EXITING L5 NERVE ROOT DUE TO FACET HYPERTROPHY AND FORAMINAL DISC COMPONENT.

The neurosurgeon and his assistant reviewed the findings on April 8, 2013, and found that appellant's “MRI findings are inconsistent with the patient's pain pattern and physical exam. Therefore, no surgery is recommended.”⁴

On April 19, 2013, Dr. Berestnev reported that appellant said his lower back pain was getting worse so that he “cannot even sleep now.” Dr. Berestnev reported that despite appellant's assertions of worsened pain, Dr. Berestnev's understanding was that the neurosurgeon “found [appellant] to be a nonsurgical candidate[.]” He stated that appellant was advised to “continue conservative management” and that he, accordingly, would continue physical therapy with prescriptions for pain management, to which appellant was “agreeable.”

The physical therapist's April 26, 2013 report states that appellant said “his leg pain isn't as bad” and noted that appellant was able to walk “a little more.” He also stated that appellant said he was continuing to have pain down his lower right extremity that increased after exercises, but noted that appellant “declines modalities stating he is in a hurry[.]”

Dr. Berestnev reported on May 6, 2013, that appellant had completed only three of six therapy treatments due to lack of transportation. He noted that appellant continued to have signs of nonorganic back pain and stated his belief that appellant “needs to complete his physical therapy” and to “continue doing home exercises.” Dr. Berestnev reported on May 20, 2013, that appellant said his lower back pain was worse “with more pain than use to.” He also reported that appellant told the physical therapist that he can do the exercises at home and “doesn't really need to come to physical therapy.” He noted that the physical therapist stated that appellant had not made “any” progress.

Dr. Berestnev further stated that appellant continued to have signs and symptoms of nonorganic back pain, but again opined that “[appellant's] pain is out of proportion to the clinical findings” with some continued “inconsistencies.” He provided the example that appellant had back pain from “lifting his right big toe up.” He noted that he did not see “any” objective findings, stating that “[i]t is pretty much a subjective pain which [appellant] is reporting.” He found the discrepancy “highly suspicious for nonorganic pain” and further opined that appellant's subjective belief that he was not getting better and transportation issues with physical therapy meant he was “left pretty much with just [the option of] a functional capacity evaluation [FCE] of his back at [that] point.”

On a date after his termination, but before his FCE was scheduled, appellant moved to Houston, Texas.⁵ Once there, he was employed by a school district as a custodian sweeping floors approximately seven hours per day.⁶

Appellant's FCE was scheduled for May 8, 2014, in Deer Park, Texas. Appellant's attorney was notified of the appointment by letter and email on April 25, 2014, with the instruction that she notify appellant as well as notice that the therapist's office would contact appellant. Appellant's attorney contacted the attorney for appellee Superior via email on May 7, 2014, advising that appellant had only learned of the appointment on May 7, 2014, and requesting that the FCE be rescheduled for June 3, 2014. She also requested that Superior pay for appellant's transportation, noting that appellant “takes the bus everywhere” and the appointment was “about a 45 minute walk” from the bus stop. In a May 13, 2014 letter to Superior's attorney, appellant's attorney advised that appellant's appointment had been rescheduled to June 3, 2014. In a May 29, 2014 email, Superior's attorney advised appellant's attorney that Superior would not pay for transportation, but would pay mileage after appellant attended the appointment. Appellant did not show up for the June 3, 2014 appointment.

A pre-hearing order was filed on August 22, 2014. Appellant's contention was “On January 5, 2013, the claimant injured his low-back when he slipped and twisted to catch himself and then lifted a heavy rim. He has since moved to Houston, Texas.” Appellees' contention was that:

[T]hey have not denied any medical treatment. The respondents have scheduled three functional capacity evaluations and the claimant has failed to appear due to transportation issues. The respondents contend that they are not required to prepay transportation expenses prior to a scheduled appointment.

A hearing before the ALJ was held on November 4, 2014. The parties had previously stipulated that appellant sustained a compensable back injury on January 5, 2013. They further stipulated that the issues to be litigated before the ALJ were whether (1) appellant was entitled to additional medical treatment in Houston, Texas; and (2) appellees were required to provide transportation to appellant's medical appointments related to his compensable low-back injury. The only pertinent facts not addressed above included when appellant received notice of the FCE appointment and...