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An appeals court in Arkansas on Wednesday affirmed a partial disability award to a corrections officer who had unauthorized back surgery following a compensable injury after his employer claimed the surgery caused him to be partially, permanently disabled.
James Jackson worked for 23 years as a prison guard for Arkansas Department of Correction before he “felt a pop in his back after lifting a dummy during his physical-endurance test” in 2013, causing a back injury that was ultimately diagnosed as lumbar strain, degenerative-disc disease and spondylosis. By 2014, after treatment and a subsequent physical fitness test that “demonstrated that Jackson had the ability to work in the medium classification,” his doctor released him, assessing a 3% impairment rating for degenerative-disc disease, according to documents in 2019 Ark. App. 124, filed in the Court of Appeals of Arkansas, Division I in Little Rock.
In 2015, Mr. Jackson sought unauthorized treatment from another neurosurgeon and an orthopedic surgeon, resulting in subsequent surgery, prompting a hearing with an administrative law judge later in 2015. At that hearing his employer — the state of Arkansas — agreed with his 3% disability but “disputed… that Jackson was entitled to additional benefits for any unauthorized treatments and surgery,” documents state.
In 2016, the administrative law judge ruled Mr. Jackson “should have obtained the permission of the carrier or the Commission to change physicians” and that the second set of doctors “are unauthorized physicians and respondents are (therefore) not liable for expenses associated with their treatment.”
The judge also noted that Mr. Jackson “remained symptomatic even after his surgery and that repeat diagnostic testing showed a recurrent disc herniation,” documents state.
Mr. Jackson appealed that decision to the state Workers’ Compensation Commission, which affirmed and adopted the earlier decision. Mr. Jackson did not appeal. However, after the Commission's 2016 decision, Mr. Jackson followed up with his general practitioner, who signed a statement explaining that Mr. Jackson was “not able to work as a result of the December 9, 2013 injury and was therefore ‘100% disabled.’”
Court records additionally contain a follow-up letter from that doctor indicating "yes" that the "assessment of the permanent impairment or disability that Mr. Jackson now has includes the result of the back surgery that Mr. Jackson had on May 21, 2015.”
A second hearing before an administrative law judge ensued, with Mr. Jackson testifying that he had not been able to work since the injury, that he had to use a wheelchair before the surgery, that following the surgery he felt better for a week, and that he walks with a cane, according to documents.
The administrative law judge ruled, among other findings, that Mr. Jackson had proven “by a preponderance of the evidence of record, that he is entitled to wage-loss in the amount of twenty percent (20%) in addition to the three percent (3%) anatomical rating for a total of twenty-three percent (23%). The compensable back injury is the major cause of disability.”
The commission subsequently affirmed and adopted the administrative law judge’s ruling.
On appeal, the state contended in part that “substantial evidence does not support the Commission's findings that Jackson met his burden of proving that he is entitled to the additional 20(%) wage-loss disability and that the compensable back injury was the major cause of Jackson's disability.” The crux of their argument was that Mr. Jackson's “unauthorized surgery amounted to a nonwork-related independent intervening cause” and that because the unauthorized surgery was the “major cause for any additional wage-loss disability,” Jackson is not entitled to those benefits under Arkansas (law).
Weighing the evidence, the appellate court affirmed the administrative law judge’s ruling, writing that, “considering the fact-intensive nature of this inquiry, in which all the specific facts of this claimant's age, abilities, education, physical and mental limitations, motivation, demeanor, and any other factor deemed relevant are to be considered, we hold that reasonable minds could conclude that Jackson was entitled to 20(%) wage-loss disability in excess of his permanent partial impairment.”
Mr. Jackson’s attorney and officials with the Arkansas Department of Correction and Arkansas Insurance Department, Public Employee Claims Division, could not immediately be reached for comment.
A former National Football League player’s workers compensation claim related to his back surgery was timely because it fell within a ten-year statute of limitations for lost-time claims, even though the Cleveland Browns argued that it was a medical-only claim with a six-year statute of limitations, an Ohio appeals court ruled.